As Lawsuit Plays Out, Uber and Postmates Dealt a Blow

Uber and Postmates were dealt a blow in the ongoing legal battle when a California federal judge denied their request for a temporary stop to AB 5. The two big companies were hoping to receive a reprieve from California’s new gig worker law.

The companies requested a temporary stop to AB 5, while a lawsuit they filed against California state worked its way through the legal system. The federal judge denied their request, leaving both gig companies obligated to comply with the law, which could mean reclassifying drivers as employees. US District Judge Dolly M. Gee noted that the court does not necessarily doubt the sincerity of the individual views presented, but that second-guessing a law designed to improve working conditions for nonexempt low-income workers is not warranted.

What is AB 5, and What Does it Mean for California Workers?

AB 5 is all about worker classification with a focus on gig economy workers. Gig economy companies are full of independent contractors. Gig economies profoundly affected by the legislation include Uber, Lyft, Postmates, DoorDash, etc. While some prize being classified as independent contractors because it offers more flexibility, it often means that drivers and other workers are shouldering many of the costs of their employment for their employers.

For example, Uber drivers pay for:

• Their vehicle

• Their phone

• Their gas

• Their vehicle maintenance

Additionally, Uber drivers do not receive access to essential benefits, minimum-wage guarantees, overtime pay for hours worked above 8 in one day, or 40 in one week or health insurance.

AB 5’s Three-Part Test to Determine Reclassification:

Under the new legislation, AB 5, which went into effect on January 1, 2020, California employers using independent contractors must undergo a three-part test to determine if they will be required to reclassify their workers. Companies that don’t pass the test must reclassify their workers as employees instead of independent contractors. Many California employers fear the new legislation will significantly harm their businesses as the management of large workforces is expensive. For example, an analysis by Barclays in June 2019 concluded that Uber’s reclassification of drivers from independent contractors to employees would cost the company about $500 million annually. A similar move would cost competitor rideshare company, Lyft, an approximate $290 million annually.

California Businesses Respond to AB 5 Legislation:

In response to the legislation, a growing group of companies and individuals are suing the state to make sure all workers receive equal protection under the law and can choose how they want to work. The response was filed by Uber, Postmates, and two gig workers, Lydia Olson and Miguel Perez. The lawsuit was filed against the state at the end of 2019 in an attempt to have AB 5 declared invalid. The lawsuit filed in response to California’s new gig economy legislation alleges that AB 5 is unconstitutional. It also asserts that the new law unfairly targets gig economy workers and companies. The group requested a preliminary injunction against AB 5 to stop it from being applied to them until their case makes its way through the court. Judge Gee denied the injunction.

Other Responses to AB 5 Across California:

Similar lawsuits have been filed against the state by other groups including truck drivers, journalists, etc. Those actively seeking to prevent AB 5 from sticking around insist that the legislation would harm the industries in which they would apply and the workers in those industries. Uber and Postmates are weighing their options and considering an appeal to Gee’s decision. Postmates sees it as a procedural decision on the preliminary injunction only and not an indication of the court’s potential decision once the full case is presented.

If you have questions about how California’s AB 5 legislation will affect your workplace or if you need to file a California employment law complaint, 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.

Siemens Mobility Sued Over Alleged Missed Breaks and Wage Issues

Siemens Mobility is currently facing a potential class-action lawsuit after one of their material handlers, Dewitt Nunery, sued to allege wage issues, skipped lunch and rest periods, and inaccurate wage statements.

Plaintiff Claims He Was Required to Work Through Breaks:

The plaintiff in the case is a Siemens Mobility warehouse worker and material handler with an hourly pay rate of $16.37. Nunery claims Siemens required him to work through breaks at the Sacramento County train factory. Nunery claims that in addition to not getting a chance to take his breaks, he was not offered accurate overtime payment for missed break time.

Skipping “Paid” Breaks Should Add Time to the End of the Shift

Since rest breaks are "paid time," skipping rest breaks during a work shift should add that time to the end of the shift, but Nunery claims it wasn't. Still working at the train factory, Nunery alleges the company pressured him to work over seven days consecutively without overtime pay. Siemens train factory has been growing significantly throughout the last several years, with numerous large orders coming in from throughout the United States and Canada. The factory fulfills orders for trains, train sets, and light rail vehicles.

Seeking Legal Help to Resolve an Employment Law Violation:

Originally, Acara Solutions Inc., a staffing agency based out of New York, placed Nunery at the Siemens train factory. Later he worked for Siemens directly. Nunery claims he experienced the same payment issues and employment law violations under both Acara Solutions Inc. and Siemens. Nunery seeks penalties under the Private Attorneys General Act and seeks class-action for others in similar situations at the company. Nunery's attorney filed a notice of violations of the California Labor Code in October. In December, they filed a civil suit in Sacramento County Superior Court. Effective February 10, 2020, the case was moved from Sacramento County court to the U.S. District Court for the Eastern District of California.

The Suit Alleges Numerous Employment Law Violations:

Nunery's suit alleges meal break violations, rest break violations, minimum wage violations, and overtime pay violations. Nunery also claims that the company failed to provide accurate and itemized wage statements and failed to provide Nunery with a day off for seven consecutive days on the job.

The Siemens factory, located just south of Sacramento, is the third largest manufacturer in the region employing 1,500 workers.

If you need to talk to someone about violations in the workplace or if you need to file an overtime pay lawsuit, 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.

Class Action Lawsuit Against Penske Truck Leasing Co. Alleges Overtime Violations

In a class-action lawsuit, allegations claim Penske Truck Leasing Co. violated numerous California Labor Code provisions, including failing to provide employees with minimum wage, violating overtime pay requirements, and failing to provide employees with required rest periods. The class action complaint was filed by the employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP. The class-action lawsuit (Case No. 20STCV04055) is pending in the Los Angeles Superior Court.

The class-action lawsuit alleges that Penske:

• Failed to provide accurate and itemized wage statements

• Failed to accurately record and offer legally required meal and rest periods

• Failed to provide employees with legally required overtime wages

• Failed to pay minimum wage

• Failed to reimburse employees for required expenses

• Failed to pay wage in a timely manner

The allegations in the class action complaint against trucking magnate, Penske, violate Labor Code.

What is an Accurate Wage Statement?

The wage statement or pay stub serves as a document employees receive each pay period to provide details about how their paycheck was calculated. In the state of California, there are specific laws that govern the info that employees receive along with payment for hours worked. In general, employees have the right to receive an accurate record of how many hours they worked, how much they are paid per hour, the total wages they are paid, and any deductions made from their gross wages. By requiring employers to issue accurate wage statements, the law allows employees to keep a statement providing them with a record after cashing paychecks.

The complaint included additional allegations in violation of the California Unfair Competition Law, engaging in unfair competition when engaging in a company-wide policy that failed to accurately record and calculate missed meal breaks and rest periods. The plaintiff also claims that the company intentionally disregarded their obligation to comply with employment law requirements by failing to provide workers with all required payment for work performed.

If you need to talk to someone about overtime law or if you need to file an overtime lawsuit, 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.

Supreme Court of California Agrees to Review Appellate Decision on Meal and Rest Period Case

The Supreme Court of California will review the California Court of Appeal's decision in the meal and rest period premium calculation case, Ferra v. Loews Hollywood Hotel, LLC. The Supreme Court will consider the term "regular rate of compensation" in Labor Code section 226.7.

In Labor Code 226.7, the term "regular rate of compensation" is used when requiring employers to provide employees with payment when required meal periods and rest breaks are not provided. The Supreme Court of California will consider the question of whether or not the "regular rate of compensation" in Labor Code 226.7 should be interpreted the same and require the same calculations as the phrase "regular rate of pay" in Labor Code Section 510(a), which references overtime calculation requirements.

What is California Labor Code 226.7?

In California Labor Code Section 226.7 employers that fail to comply with employment law by providing employees with required meal, and rest periods are required to pay the employee an additional hour of payment. According to the section referenced, the payment must be "at the employee's regular rate of compensation for each workday" that the employer does not provide a meal or rest or recovery period.

What is California Labor Code 510?

In California, Labor Code Section 510, employers are required to pay employees overtime at either one and one-half or twice the employee's "regular rate of pay" if the employee works more than full-time hours (as determined by law).

Defining Section 510's "Regular Rate of Pay:"

Previously, Section 510's "regular rate of pay" was clarified by the Supreme Court of California, determining that calculations should include additional compensation outside of the employee's straight hourly rate. Additional compensation could consist of anything from commissions to split-shift differentials to nondiscretionary bonuses, etc. There is no similar California case law that provides clarification for calculating Section 226.7's "regular rate of compensation." The question forms the basis of deliberations for the court considering Ferra.

The plaintiff in the case is an hourly employee of Loews Hollywood Hotel, LLC, that brought a putative class action against the hotel giant, alleging that the company inaccurately calculated meal and rest period premiums in violation of Labor Code Section 226.7. The plaintiff argued that Loews should have calculated the regular rate of compensation for payment due to missed meal and rest periods in the same manner used to calculate the regular rate of pay used to determine payment for overtime hours. The Court of Appeal came back with an employer-friendly ruling, disagreeing with the argument presented by the plaintiff in the case.

The plaintiff appealed to the Supreme Court of California, asking that Labor Code Section 226.7's terminology receive clarification.

If you have questions about California labor law violations or how California responds to employment law violations, 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.

$175k Settlement in Carmel Restaurant Sexual Harassment Suit

To resolve a federal sexual harassment lawsuit filed on behalf of both male and female workers at California’s Carmel restaurants, owner/operator JCFB, Inc. agreed to pay a settlement of $175,000. The settlement agreement and amount was announced January 9, 2020. 

Sexual Harassment Suit Alleges Multiple Incidents:

According to the harassment lawsuit, one the the male line cooks working at Porta Bella Restaurant was repeatedly “grabbed” inappropriately; with his “private parts” being grabbed on numerous occasions by the kitchen’s manager, the chef and the cook. When the line cook reported the inappropriate behavior to the owners of the restaurant, they dismissed it as “only play.” After the dismissed report of the inappropriate behavior, the line cook claims that the chef became irate and confronted him, yelling and hitting him and finally forcing him to quit his job at the restaurant. The lawsuit alleges that the restaurant did not adequately investigate the incident or appropriately discipline the harassers.

Multiple Employees Came Forward with Harassment Allegations:

A female dishwasher working at Mediterranean Restaurant claims she endured sexual comments daily and regular unwanted and inappropriate physical touching by the same kitchen manager that harassed and retaliated against the Porta Bella Restaurant’s line cook. She informed her manager at Mediterranean Restaurant, and while it was a different manager than the one who handled the line cook’s complaint at the Porta Bella, the response was similar. The sexual comments and inappropriate behavior continued unchecked.

Workplace Harassment Violates Employment Law:

Both situations noted above are alleged violations of Title VII of the Civil Rights Act of 1964 prohibiting sexual harassment in the workplace. The harassment lawsuit was filed in U.S. District Court for the Northern California District. Before filing the lawsuit the parties involved did attempt to reach a pre-litigation settlement through a voluntary conciliation process.

Defendant Settles the Harassment Lawsuit for $175K:

The $175,000 settlement is part of a three-year consent decree ordering JCFB to pay the two former workers and provide anti-harassment training to their employees working at either Carmel Restaurant location. The JCFB is also required to work with an external consultant to monitor any future hostile workplace complaints. Doing so will hopefully assist the company as they implement effective HR practices to ensure proper training and appropriate investigating will occur as well as necessary disciplinary measures for those in violation of higher workplace standards. The changes will be made in hopes that incidents of harassment will be curbed at restaurant locations.

It doesn’t matter if the harassment is verbal or physical or if the victim is male or female, employers have to take incidents of workplace harassment very seriously and dedicate themselves to ensuring their service industry workers are protected from hostile work environments. 

If you are experiencing discrimination in the workplace or if you need to file a discrimination 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.

Tesla Faces a Racial Discrimination Lawsuit at the California Factory

Tesla Inc.’s effort to dismiss claims made by two former employees at their California factory failed. The federal judge rejected the electric car maker’s request to dismiss, which cleared the way to a potential trial.

Who Are the Plaintiffs Filing the Discrimination Suit?

Tesla’s California electric car factory employs over 10,000 people. Two of the factory’s former employees, Owen Diaz and his son Demetric Di-az, claim the workplace was rampant with racial hostility. U.S. District Judge William Orrick of San Francisco found open questions over whether the plaintiffs faced harassment that was specifically severe and pervasive. The two plaintiffs allege that the harassment took place throughout both 2015 and 2016. Owen Diaz claims he worked at the factory as an elevator operator for 11 months. Demetric Di-az claims he worked at the factory as a production associate for two months.

Diaz and Di-az, black employees at the factory, claim they were forced to listen to racial epithets regularly, subjected to racist cartoons, and that factory supervisors at best did little to stop the workplace harassment, and at worst, engaged in the harassment alongside the plaintiffs’ co-workers. They may pursue claims that the company did not make a reasonable attempt to stop the racial harassment and seek punitive damages. In order to seek punitive damages, the plaintiffs will need to show that the company was aware of the harassment, even if higher management did not engage in the actual hostile treatment.

The case is scheduled for trial May 11, 2020.

The Defendant: Tesla Electric Car Manufacturer

Tesla is a Palo Alto, California based company. While the electric car manufacturer has faced numerous racial harassment lawsuits, they are not the only car company to have similar legal issues in recent years. Ford faced a similar problem in 2017. The company agreed to a $10.1 million settlement to resolve similar problems with alleged racist behavior at two different Chicago factories. Tesla insists that they did not hesitate in addressing racial abuse at their Fremont factory, but that there is no evidence in this case of fraud, malice or oppression.

Other Details in the Tesla Racial Discrimination Case:

The plaintiffs, Diaz and Di-az, may also pursue claims against the staffing agency that assigned him to the factory, as well as a liaison between that agency and the electric car manufacturer, Tesla. The plaintiffs will likely seek millions of dollars in damages.

If you need to discuss harassment or workplace discrimination, 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.

$300,000 Discrimination Lawsuit Filed Over Marriot’s ‘No Party Policy’

Marriot is facing a $300,000 lawsuit. A California woman filed the suit claiming she was singled out during check-in because of her race and required to sign a "no party policy' the Marriott desk clerk insisted was standard.

What Makes a Business Practice Standard?

While the desk clerk claimed that requiring guests checking in to sign a 'no party policy' was standard, one particular guest who was required to sign it insists she was singled out due to her race. Felicia Gonzales, a 51-year old Californian black woman, was attempting to check in to the Residence Inn by Marriott Portland Downtown/Convention Center when asked to sign the 'no party policy." The desk clerk said that all guests were required to sign the same policy. Gonzales accepted that the 'no party policy' was standard practice at the hotel until she witnessed white guests checking in without being asked to sign the 'no party policy.' For the practice to be "standard," it would need to be required of all guests, not just certain guests.

What Is a 'No Party' Policy?

' The 'no party policy' was allegedly two pages long and included a variety of potentially discriminatory information including:

• Noise limits

• Instruction not to "insinuate distrust" in other guests

• Clarification that hotels do not want to have parties and that their hotel did not want that sort of business

• Notification that guests were responsible for any missing items from suites

• Notification that guests were responsible for any damage "invited or uninvited people" cause to the outside hotel property

Why Was Gonzales Asked to Sign the 'No Party' Policy?

Gonzales was a Marriott rewards member and had not had any problems in the past. She had never had a noise complaint at the hotel or any Marriott hotel. Gonzales signed the policy so she could check into her room; the desk clerk would not check her in for her five-night stay unless she signed. But being required to sign a 'no party' policy did not feel right, so she went back to the check-in desk later and observed numerous white guests checking in for their stay. There was no mention of the 'no party policy' to any of the white guests Gonzales saw checking in to the Residence Inn.

The $300K Discrimination Lawsuit:

Gonzales, the plaintiff in the suit, seeks $300,000. She claims the situation was frustrating, embarrassing, and humiliating, and that she felt racially stigmatized. It is noted in Gonzales' discrimination lawsuit that it could be amended to seek $1 million in punitive damages at a later date. Marriott does not comment on pending lawsuits.

If you need to discuss discrimination violations 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.