Reclassification of Part-Time Professors Cause Increase of Wage Lawsuits

As California film schools reclassify part-time professors, the number of wage lawsuits is increasing. Numerous universities with strong ties to Hollywood have adjunct professors now classified as hourly workers. Some insist the change short-changes students and undercuts the staffers who are underpaid and, in some instances, underused.

Vetoed Bill Results in Reclassification of California Adjunct Professors:

In late fall 2019, California Governor Gavin Newsom vetoed a bill aiming to make most California adjunct professors salaried employees. In response, many part-time or “adjunct” professors in California’s universities became hourly workers effective January 1, 2020. The change keeps the universities compliant with California labor law and, in theory, provides adjunct professors with pay for all the hours they work. The reclassification to hourly wage also came with a bit of a pay bump for many, seen as an incentive while part-time professors dealt with the annoyance of logging their in and out-of-class work hours.

Reclassification for Many Adjunct Professors is Problematic:

In practice, adjunct professors see some problems with the reclassification. For instance, some part-professors saw their hours decrease for the upcoming interterm (the 4-week, short term between fall and spring semesters). They would need to teach their interterm class in half the time and for about 2/3 the pay (including the new “pay increase”). Before the reclassification, the professors would make an entire semester’s salary during interterm, but with the new pay scenario, this was no longer the case.

Problems Quantifying the Work of Professors:

Reclassifying adjunct professors has brought issues with quantifying the work of instructors (especially instructors handling creative projects) into the light. The current solution of reclassifying part-time professors as hourly employees is not a perfect fit for the adjunct professors or the school administration. Adjunct professors have cited poor pay and long hours for years, but recent reclassifications led to a series of wage and hour lawsuits alleging failure to pay for all hours worked, failure to provide meal and rest breaks, etc.

As More Private California Universities Face Wage and Hour Lawsuits:

California Assemblymember Jacqui Irwin introduced bill AB 1466 in response to the volume of lawsuits against universities across California. The bill intended to make many part-time faculty members salaried positions with a minimum salary. The bill passed, but the Governor later vetoed it, claiming there would be unintended consequences for a large number of workers and may create a substandard wage rate for teachers. Irwin and supporters of the bill disagree and plan to introduce a modified version later this year, bill AB 736.

In the meantime, part-time professors at various California universities are left in a tough spot struggling to follow strict guidelines limiting their hours, attendance at extracurricular school events, and a less than worthy pay structure. For example, payment for curriculum planning in the current pay schedule is limited to 1 week before the start of class.

If you have questions about misclassification or if you need to file a California 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.

Kim. V. Reins International California, Inc. Decision & Settling PAGA Claims

What does the California Supreme Court decision in Kim v. Reins International California, Inc. (Case No. S246911) indicate about settling PAGA claims? The critical decision was given on March 12, 2020, but before discussing the decision and what it says about settling PAGA claims, consider the details of the case. 

In Kim v. Reins International California, Inc.:

The Plaintiff in the case, Justin Kim, settled his individual claims against his employer and then attempted to move forward with his PAGA (Private Attorneys General Act) against his employer (Reins). Reins employed Kim as a training manager classified as exempt. Kim filed suit against Reins in a putative class action alleging that Reins, the employer, misclassified training managers. Kim alleged multiple employment law violations including:

• Failure to pay wages and overtime

• Failure to provide meal and rest breaks

• Failure to provide accurate wage statements

• Waiting time penalties

• Unfair competition

• Civil penalties under the PAGA 

Reins Immediate Response to Allegations of Employment Law Violations:

Reins moved to compel arbitration of the individual claims and dismissed the class claims. Their action was based on an arbitration agreement and class action waiver that Kim signed at the time of hiring. The trial court ordered arbitration of all claims, except for the PAGA claim. The court also ordered the injunctive relief portion of the unfair competition claim and stayed the PAGA litigation until individual claims litigation was finished. When individual claims were settled, Reins moved for summary adjudication in the PAGA action based on the settlement agreement that resolved Kim’s individual claims, which meant Kim was no longer an “aggrieved employee” under the PAGA.

Does Settling Individual Claims Mean Kim is No Longer an Aggrieved Employee?

The trial court agreed that Kim was longer an “aggrieved employee” eligible under the PAGA, ruling that Kim’s decision to settle his individual claims with the employer precluded him from continuing forward with PAGA claims. (Under the PAGA statute, an individual must be an “aggrieved employee” to qualify.) Kim took the issue to the appeals court, where they agreed with the previous ruling of the trial court found that by accepting the settlement and dismissing his individual claims, Kim acknowledged he no longer maintained Labor-Code-based claims against the company.

The Supreme Court’s Decision & PAGA Claims:

But the California Supreme Court ruled that Kim, a PAGA plaintiff, can continue litigation of a PAGA action after settling individual claims. The case and the Supreme Court’s decision have some employers worried about how future allegations may be handled.

If you need to talk to someone about employment law violations or if you need to file a misclassification 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.

Former Amazon Manager Claims She Searched Social Media of Job Applicants to Determine Race and Gender

Lisa McCarrick, former Amazon Manager, sued the massive online retailer, alleging Amazon fired her because she raised concerns about scouring job applicants' social media to determine their race and gender during the application process. McCarrick, 38-year-old, claims that her supervisor required her to search applicants' social media, and when she complained about the practice, she was fired from her position at the company.

Former Amazon Manager Files Suit for Various Employment Law Violations:

McCarrick is a resident of Rocklin, which is located about 20 miles outside of Sacramento. McCarrick's California wrongful termination lawsuit against Amazon was filed in the Superior Court of California, Alameda County. McCarrick alleges retaliation, wrongful termination, failure to prevent discrimination in the workplace, and violations of California's labor code.

Allegations of California's Equal Pay Act Violations:

McCarrick is also suing Amazon for violating California's Equal Pay Act, claiming that she was paid significantly less than male co-workers who performed similar job duties. Amazon hired McCarrick as a Loss Prevention Manager in July 2018. Five months later, she was promoted to a regional manager position. According to the lawsuit, McCarrick's new supervisor told her she needed to search social media profiles of any prospective new hires with the express purpose of determining "race/ethnicity and gender."

Amazon Previously Faced Lack of Diversity Claims:

McCarrick was aware of previous criticism of Amazon due to lack of diversity in the workplace, and she thought the requirement to search out race and gender based on job applicants' social media was unlawful. Her concerns led her to submit a written complaint in September. In the written complaint, she also noted the gender-based pay disparity.

McCarrick Claims She was Wrongfully Terminated from Her Job:

Within two months of submitting the written complaint, McCarrick was called into a meeting with human resources and the Director of Loss Prevention. She was informed that she was terminated from her position with the company. During the same meeting, her direct supervisor admitted to using social media to determine the race and ethnicity of prospective new hires. The Loss Prevention Director allegedly attending the meeting advised McCarrick that while her male co-workers did make more money than her…" that happens all the time at Amazon." During her time at the company, McCarrick always received positive performance evaluations. Still, at the time of her termination, the reason cited for her firing was that she did not meet expectations.                                                         

If you need to talk to someone about workplace discrimination or you need to file a wrongful termination 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.

Famed California Art School Faces Wrongful Termination Lawsuit from Estate of Former Otis College Director

The estate of former Otis College Director, Bruce W. Ferguson sued famed California art school, Otis College of Art and Design, alleging wrongful termination. Ferguson passed away in 2019 after amassing numerous notable career achievements during his lifetime.

About Former Otis College Director, Curator Bruce W. Ferguson:

In 1993, Ferguson founded the art space SITE Santa Fe, a destination in New Mexico, and organized parts of editions of the Venice Biennale, the Bienal de São Paulo, and the Biennale of Sydney. His final professional position was president of the Otis College of Art and Design. His time at the famed California art school ended only months before he died at age 73, but controversy abounds now that he is gone. 

The Former Director's Estate Files a Wrongful Termination Lawsuit:

Ferguson's sister, Anne Marie Ferguson, filed a lawsuit in the Western Division of the United States District Court for the Central District of California. The lawsuit alleges that the school forced Ferguson out of his position, discriminating against him due to his illness associated with his pancreatic cancer diagnosis. When filing, Anne Marie Ferguson listed the school as well as "Does 1 to 10" as defendants. The designation "Does 1 to 10" refers to various John or Jane Does that may be added to the suit as the case progresses.

Allegations Made in the Wrongful Termination Lawsuit:

Ferguson's sister claims that the famous art school rushed to fire him due to his disability and need for accommodations. According to the suit, the Otis College board's claims of poor performance were a fabricated "pretext" to justify firing Ferguson. One of Anne Marie Ferguson's attorneys said he's never seen…" an employee get a raise, a diagnosis of cancer, and then fired all within a matter of months."

Ferguson's History on the Job at Otis: 

Ferguson took the job as President at Otis in 2014 and was diagnosed with cancer in 2018. In early 2019, Ferguson privately disclosed his illness to Gail Buchalter, the chair of Otis's board. Last February, he advised Otis faculty of his diagnosis. A group of faculty members submitted a letter of "no confidence," citing low morale at the school and the need for transparency in leadership. (The former director's estate regards this letter as the pretext the school used to justify Ferguson's dismissal). Last March, Ferguson was preparing to undergo chemotherapy when he was placed on administrative leave. According to the suit, one board member told him he was "axed."

The Estate Claims Otis Violated Employment Law:

According to the estate's attorneys, the school's actions violate the Fair Employment and Housing Act, which protects workers from discrimination based on race, gender, sexuality, religion, or disability, as well as the American's with Disabilities Act. In addition to discriminating against Ferguson due to his diagnosis and perceived disability, the estate alleges retaliation.

If you have questions about discrimination, retaliation, or wrongful termination in California workplaces, 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 Chipotle Workers Denied Class Action Certification

California Chipotle workers were recently denied certification of a potential class action. The U.S. District Court for the Northern District of California explained that at the class certification stage, it isn’t enough to assert that there were company-wide policies. The plaintiffs must prove that the alleged policies exist on a “company-wide basis.”

About the Discrimination Case: Guzman v. Chipotle Mexican Grill, Inc.

The plaintiffs brought the class-action lawsuit alleging that Chipotle systematically discriminated against Hispanic or Mexican workers with claims under the California Fair Housing and Employment Act (FEHA). Plaintiffs in the case sought class certification with a proposed class of about 43,000 workers (mostly Hispanic or Mexican hourly workers). The suit alleged numerous discrimination, retaliation, and harassment claims based on two alleged Chipotle policies:

What Chipotle Policies Led to the Discrimination Suit?

English-Only Policy: Plaintiffs in the case alleged there was an unwritten policy that prohibited Chipotle employees from speaking Spanish on the job.

Promotion Policy: The plaintiffs in the case also alleged that an unwritten Chipotle policy required a subjective English proficiency before a Chipotle employee could be promoted to a management position.

Were Alleged Unwritten Policies Company-Wide?

The plaintiff employees alleged that the unwritten policies applied at all California Chipotle locations (approximately 400 across the state). The Defendant argued that there was a lack of evidence demonstrating this claim. Additionally, Chipotle argued that even if the unwritten policies did exist and were company-wide, claims would require individualized inquiries into the company policies, including the alleged decision-making by supervisors determining promotion, etc. at individual restaurants. The court’s response to the request for class certification was that when considering class certification, the court cannot accept the Plaintiffs’ theory of the case at face value, but must instead engage in rigorous analysis to determine whether or not Rule 23 is satisfied. In some cases, this analysis overlaps with the merits of the dispute.

Did Plaintiff Employee’s Evidence Rebut Their Own Argument?

The court also stated that the plaintiff’s evidence offered in support of their argument actually rebuts the inference that Chipotle uniformly imposed the named policies across all their California locations. When examining 12 declarants, the court received differing responses. Half the declarants did not experience the alleged English-only policy. Some who claimed they experienced the alleged English-only policy were permitted to speak Spanish among themselves at work. The declarant testimonies led the court to conclude that there was no evidence of a “company-wide” English-only policy applicable across the entire proposed class.

The plaintiffs and declarants also experienced different policies and requirements for promotion, depending on their location and their supervisor. One declarant asserted they did not experience the alleged promotion policy at all. Some “similar” experiences were noted, but those employees worked in the same store under the same general manager. Testimonies on record indicated that four of the 400 California Chipotle locations had employees who were told at varying times that promotion depended on improving their English proficiency. Based on testimonies offered, the court concluded that, in regards to the unwritten promotion policy, the evidence did not suggest a uniform, “company-wide” policy applicable to all class members.

Without a common question of law or fact, class certification is not appropriate since the suit would not be resolved efficiently in a single proceeding. Due to these facts and findings, the court denied class certification. This action is a reminder to California employees that class action certification requires proof of the existence of a uniform policy – especially when allegations are based on unwritten policies.

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.

$3.65 Million Settlement Goes to Dancers for California Labor Lawsuit

A $3.65 million settlement was approved by the District Court for the Central District of California, effectively ending the California labor lawsuit alleging that The Spearmint Rhino nightclub chain made a practice of misclassifying dancers as independent contractors. The practice of misclassifying workers as independent contractors violates FLSA (the Fair Labor Standards Act) and California Labor Law.

The Spearmint Rhino Misclassification Lawsuit Receiving Extra Attention:

The dancers at Spearmint Rhino nightclub offered nude, semi-nude, or bikini entertainment to the club’s patrons at various locations since October 30, 2017. In the end, they will net approximately $2.6 million. The misclassification lawsuit filed by Spearmint Rhino’s dancers is just one in a long series of suits and related legal actions that are inspiring a noticeable reaction. The attention this case received is party due to the novelty of a sex industry labor lawsuit, but also due to the currently charged political debate about AB 5, California’s new gig worker law based off of the Dynamex decision.

Dancers Actually Pay their Employer to Work for Tips:

Did you know that in many cases, dancers in the sex industry end up paying their employers so they can work for tips? It’s true. The economics of exotic dancing are unlike anything you’ve seen in other industries. Dancers are required to pay an assortment of “fees” such as house fees or dance floor fees before performing at an establishment.

In some cases, the dancers must sign an agreement requiring them to pay a lease fee for the “business space” they will be using. Additionally, many employers in this industry charge exotic dancers a higher stage fee if they are not fully nude by the end of their performance. Exotic dancers do not receive wages; they work for tips. Dancers share their tips with the bartenders, DJs, and dressing room helpers (often referred to as House Moms). If it’s a slow night, an exotic dancer may go home with very little to show for a full shift.

Legal Actions Targeting the Exploitative Sex Industry:

Ortega v. The Spearmint Rhino is just one in a series of similar lawsuits. The change that would come with AB 5 would not be limited to exotic dancers or the sex industry. The legislation was originally drafted to address misclassification issues in the gig economy. AB 5 applies to any California worker who finds themselves pushed or forced into independent contractor status without fully understanding the consequences of the classification.

Opponents of AB 5 Refuse to Comply or Seek Exemption

The purpose of AB 5 is to address misclassification in the workplace. Misclassification is a significant issue because employees have essential wage and hour protections in place that do not apply to independent contractors. In some cases, it can be difficult to distinguish between an employee and an independent contractor. Following Dynamex, the legislature introduced AB 5 to address this problem using a simple test to determine which workers are employees (and entitled the protections of employment law), and which workers are independent contractors.

Many employers actively fought against AB 5 before it was enacted. Some were exempted using modifications to the law. Other California employers (like Uber and Lyft) announced that they would not comply with the terms of AB 5. In the face of such powerful opposition, some wonder what would happen to workers like the Spearmint Rhino dancers if AB 5 is repealed or left without the power of effective enforcement through additional amendments or judicial limitations?

The Fate of California Misclassification Suits: With or Without AB 5

The Ortega suit against Rhino Spearmint night club was filed in before AB 5 was enacted – in February 2017. It was filed before the Dynamex decision that led to the legislative change. While the case did not receive an actual judicial decision, the defendant found the arguments presented strong enough to warrant making a settlement to resolve the matter out of court. This conclusion would be likely with or without AB 5 in place. While it is likely that misclassification lawsuits would be more difficult for California workers to win without AB 5, it is not their only hope.

If you need to discuss misclassification or how to file a misclassification 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.

Did Apple Violate the Law by Not Paying Employees During Mandatory Searches?

In July 2015, the employees suing Apple for not paying hourly wages for the time spent waiting in lines for mandatory, daily security checks got their case certified as a Class Action. And now the California Supreme Court ruled against Apple.

Are Mandatory Searches a California Labor Law Violation?

On February 13, 2020, the California Supreme Court found Apple Inc. in violation of California labor law due to their failure to pay employees for time spent waiting for mandatory bag and iPhone searches after work shifts. The decision is the latest progression in the battle over off-the-clock work payment. This case represents the California Supreme Court’s third wage and hour decision in two years that interprets the state’s employee-protective wage requirements. At the trial level, Apple came out on top with the U.S. District Court for the Northern District of California finding that Cupertino, California Apple employees chose to bring their bags and purses to work and therefore choosing to be subjected to mandatory searches. But on appeal, the U.S. Court of Appeals for the Ninth Circuit turned the question over to the state court for interpretation of California labor law.

Determining Who Holds the Power During the Mandatory Search:

Since compensation depends on whether or not the employee is under the control of the employer, it is crucial to determine if Apple workers are under Apple’s control while they wait in line for mandatory searches, while they are undergoing the mandatory searches, and when they are exiting the mandatory searches. The mandatory searches occur when Apple employees finish their shifts and wish to leave the premises for the day. The exit search is a burden to Apple employees because it prevents them from leaving with their personal belongings until they have completed the thorough (and mandatory) exit search. The mandatory search process can take anywhere from five to twenty minutes. Employees are required to make specific movements and actions during the mandatory search.

Apple Claims Mandatory Searches Benefit Employees:

Apple claims the bag-search policy is justified as providing a benefit to Apple employees. Still, the court finds this far-fetched under the circumstances of the case and in consideration of regular, 21st-century living. The case will return to the Ninth Circuit, the same court that already held that Nike and Converse must face workers’ claims that they should receive payment for time spent in post-shift bag searches.

If you need to discuss employment law violations or if you need to file an off-the-clock work 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.