Lululemon Allegedly Failed to Pay Accurate Overtime to California Employees

Lululemon USA Inc. is facing overtime allegations. The California overtime lawsuit claims that the company violated the PAGA (Private Attorney General Act) when they failed to calculate and pay their employees overtime wages accurately. The suit is pending in Los Angeles Superior Court.  

Lululemon Faces Numerous Employment Law Allegations

In the LA overtime lawsuit, Lululemon faces allegations from the plaintiff and other aggrieved employees that they did not receive payment for all hours worked, including overtime hours. The plaintiffs also claim that the company failed to keep accurate records, provide required meal and rest periods, and provide suitable seating for employees (when the nature of their work reasonably permitted sitting).

The Lululemon Lawsuit Includes Multiple Labor Law Violations

In the California lawsuit, plaintiffs made several severe allegations of employment law violations, including:

Violation of applicable sections of California Labor Code and the requirements of the applicable Industrial Welfare Commission (IWC) Wage Order due to a company policy, practice or procedure that allegedly failed to provide aggrieved employees with seating when their job duties reasonably permitted sitting while working.

• Failure to pay overtime

• Failure to pay for all hours worked

• Failure to keep accurate wage and hour records

• Failure to provide required meal breaks

• Failure to provide required rest periods

What is the PAGA or Private Attorney General Act?

In addition to bringing individual claims, plaintiffs can sue under PAGA for alleged employment law violations. The Private Attorney General Act (PAGA) is a California statute enabling workers to file suit against their employees for labor law violations. Using PAGA, California workers can act as private attorneys general and seek civil penalties as if they were a state agency. The statute was designed to allow citizens to be deputized to enforce labor code and was created in response to California state’s limited resources. Under PAGA, employees can step into state regulators' shoes to seek civil penalties and receive a portion of the amount they recover as compensation. Civil penalties recovered under PAGA are split, with 25% going to employees and 75% going to California.                                        

If you need to talk to someone about overtime violations or if you need to file a California 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.

Unemployed Workers Flock to Gig Jobs During Covid-19 Pandemic

As more furloughed California workers turn to gig jobs to generate income during the Covid-19 pandemic, experts worry that they aren’t aware of the dangers they face. 

Hundreds of Thousands of Gig Jobs Become Available During Pandemic:

With workers in many industries struggling to find even minimal part-time work due to the Covid-19 pandemic, more than 38 million people have filed for unemployment nationwide in the last few months. At the same time, hundreds of thousands of gig jobs are opening up due to changes in how consumers behave during stay home orders and shelter in place orders. Amazon, DoorDash, Instacart, and Shipt all experienced significant increases in usage that resulted in a hiring frenzy.   

Furloughed Workers Rush Toward Gig Jobs During Covid-19 Pandemic: 

Many workers who have been laid off, furloughed, or can’t work from home are rushing toward the jobs available in the gig industry. The promise of flexible hours and an immediate, flexible income draws many to jobs that have been facing significant kickback due to alleged employment law violations. Instacart was founded in 2012, but in the last two months, they have doubled their workforce. Target’s Shipt delivery services doubled its fleet size in the last two months (after six years in business). 

What If Gig Jobs Stick Around After the Pandemic? 

If consumer demand for home delivery stays strong after the pandemic, the significant influx of new gig workers could become the new norm. More American workers could face the same inequities that were exposed by the virus (lack of employee rights affording workers sick leave, health care, etc.) Gig work offers few worker protections (even during good times), but the coronavirus increases the stakes. Workers are classified as independent contractors, allowing on-demand companies to shift much of the risk of the services they provide to their workforce. Workers provide their own vehicles, their own gas, take-home pay is volatile, and there is no minimum wage or overtime pay. 

If you have questions about California labor law violations or how employment law applies to California’s gig economy, 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.

ERISA Lawsuit Argues Pharmaceutical Company Ignored Outrageous 401(k) Fees

In a recent ERISA lawsuit, plan fiduciaries allegedly failed to use the lowest cost share class for several mutual funds in a plan. They did not consider investment vehicles available at lower-costs. The plaintiffs claim the Pharmaceutical Product Development LLC Retirement Savings Plan fiduciaries have violated their fiduciary duties under the Employee Retirement Income Security Act (ERISA) since April 15, 2014.

Plan Fiduciaries Violated ERISA Failing to Use Lowest Cost Share Class:

Plaintiffs in the case claim that the plan fiduciaries failed to adequately (and objectively) review the plan investment portfolio to make sure that chosen investments were prudent both in terms of costs and maintenance of certain plan funds. This failure meant that ignoring other similar investment options that offered lower costs and better performance histories. Plaintiffs also allege that the fiduciaries failed to use the most economical cost share class for some mutual funds in the plan, and failed to contemplate collective trusts, separate accounts, or commingled accounts as options to the mutual funds (despite lower fees).

Plaintiffs Allege that Plan Fiduciaries Failed in Their Duties:

On average, 401(k) plans pay significantly lower fees than regular industry investors. This is true even as expense ratios for all continued to drop over the last several years. Additionally, the plan in question holds over $700 million in assets. The $700 million was managed since December 31, 2018, and the plan should have the ability to negotiate lower fees and invest in specific vehicles that require investment/balance minimums. The lawsuit documentation claims the plan funds have remained mostly unchanged through the past six years. As of 2018, plaintiffs were able to show data comparisons indicating over 60% of the plan funds were significantly more expensive than comparable funds in plans of a similar size.

Fulfilling a Fiduciary Responsibility for Retirement Plan Participants:

Plaintiffs argue that a prudent retirement plan fiduciary searches for and chooses the lowest-priced share class available. In this case, the plaintiffs’ fiduciaries failed to monitor the plan prudently and pinpoint whether or not it was invested in the lowest cost share class possible for the plan’s mutual funds. The plaintiffs also offered data illustrating how much more expensive the funds were in comparison to their similar situated options. Using more expensive share classes does not benefit plan participants in any way since the high-cost share classes did not provide any additional benefits or services. They did come with a consequence for plan participants, though.  

If you need to discuss violations of fiduciary duty or would like to talk about filing an ERISA class action, 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.

Employers Forcing Staff Back to Work During the Coronavirus Outbreak

Many California workers are asking the same questions right now, can your employer force you to return to work during the coronavirus outbreak? Some employees refuse to return to the workplace because they do not want to risk spreading the novel coronavirus. 

California-based Hairstylist Who Refuses to Return to Work Amid Outbreak:

Michelle Sylvester is a California hairstylist who says that a significant portion of her clients are older. While the salon where she works is still open for business, she is not returning to work until health agencies announce that the Covid-19 crisis is over. She doesn’t feel comfortable putting her life in danger or the lives of her clients in jeopardy over a few dollars. Since Sylvester is an independent contractor, she is not at risk of losing her job if she doesn’t show up for work. But many Californians can’t say the same.

Workers Wonder About their Rights During the Novel Coronavirus Outbreak:

As the coronavirus pandemic spreads, workers are wondering about their rights. What rights do workers have if their superiors on the job request (or demand) their return to the workplace. With some legislative leaders more worried about the economy than personal safety of California’s people, it has become a very relevant and pressing question, can you boss make you return to your desk job during a pandemic?

Can Your Boss Make You Go Back to Work During a Pandemic?

While experts say the answer to this particular question is no, the law isn’t entirely black and white. Whether or not your boss can force you to return to work may depend on the type of job you have. If your job position is defined by the local government in your area as “essential,” you may need to comply with your employer’s request to return to work or risk your job. California workers performing essential jobs like pharmacists or police officers or sanitation workers, etc. can be told to return to work. If they do not respond as requested, their actions may be defined as insubordination, or even considered “quitting” their job.  

Who Determines Whether Your Job is Essential Or Not?

Federal guidelines leave it to the state and local authorities to define which businesses are essential in a time of crisis. In most cases, the following workers would be considered essential: grocery store workers, medical staff, law enforcement, food laborers, utilities and transportation workers, government workers, emergency personnel, first responders, etc.

What Protections Are in Place for California Workers?

Unless there is a local mandate requiring that you show up to work during the coronavirus pandemic, employees are most likely within their legal rights to stay home (particularly if they are near a hot zone). The Occupational Safety and Health Administration includes a “General Duty Clause,” requiring that employers provide hazard-free work environments. (Hazard being defined as anything likely to cause death or severe injury to workers). Covid-19 counts as something “likely to cause death or severe injury.

If you need to discuss employment law violations in the wake of Covid-19, 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.

Will California See the First Coronavirus Discrimination Lawsuit?

In recent news, an L.A. attorney announced she would be representing the plaintiff in the first U.S. coronavirus discrimination case. The plaintiff was employed at a California medical facility at the front desk. He claims that when the coronavirus pandemic made itself known several weeks back, doctors and nurses were provided with personal protective equipment (PPE). Still, workers at the front desk were not given PPE.

Unsafe Work Conditions & Wrongful Termination Amid Covid-19 Crisis:

While he was concerned about the lack of safety precautions, he continued checking patients in for care at the medical facility until the hospital discovered that a patient he interacted with later tested positive for coronavirus. Once it was determined that he was exposed, he was sent home, which was appropriate as a preventive measure at the hospital. What followed was not necessary or legal. The next day, he was fired.

Wrongful Termination Following Exposure to Coronavirus on the Job:

When the hospital fired him the day after notifying him that he was exposed to a patient that later tested positive for the virus and sending him home, he was shocked. Luckily, the law provides a means for him to seek justice through general disability laws.

General Disability Laws & Employees Discriminated Against Due to Coronavirus:

 The case will be argued based on general disability laws. Since disability refers to a condition or state that affects a primary life function (like breathing), and even if the effect is only felt for a few days, it qualifies as a disability under state law. The law prohibits employers from discriminating against their employees or harassing an employee because they have a disability.

Employee Terminated Due to Suspected Covid-19 Infection:

In this case, the employee was tested for Covid-19. While the test came back negative, the employer (who is still unnamed at this point), terminated him simply because people perceived him to be infected. Firing an employee because you perceive them to have a condition or disease is prohibited under California law. Similar arguments were seen 30 years ago when AIDS discrimination cases were prevalent, and employees who were perceived to have AIDS just because they were a gay man, and they were fired. This same theory will be back in court again, but this time, with Covid-19 rather than AIDS as the target of workplace discrimination.

Will the First Coronavirus Discrimination Case Go To Court?

While the case has not yet officially been filed, the plaintiff’s attorney did release that a letter was sent to the medical center to allow them the opportunity to make it right. The only response received was that since they’re in the middle of a crisis, they won’t be responding. Due to this non-response, the case appears to be headed to court.

The Covid-19 Crisis Does Not Negate the Law: Employees Still Have Rights

The counsel for the plaintiff in this soon-to-be case does concede that there is a crisis; she points out that it is a medical crisis – not a legal crisis. Furthermore, this is also a time of crisis for California workers. People are out of work. Families are struggling to pay their bills. And we can’t forget them. California employers cannot cast their people aside, break the law, and justify it by the fact that they’re too busy facing a crisis to deal with the consequences of their employment law violations. The law is still in place, crisis, or not. Employees still have rights and protections under the law.

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.

Employment Law Issues: Are Nurses Being Punished for Speaking Out About Coronavirus Unpreparedness?

Some say that nurses know we were not prepared for the coronavirus, and those who speak out are punished.

Nurses Not Provided with Basic Personal Protective Equipment: 

Chelsea Halmy worked the night shift at Providence St. John’s Health Center in Santa Monica. When she reported for her shift on April 11, 2020, she made a routine request for an N95 respirator mask before she came into contact with patients. As an experienced healthcare professional, she was well aware that the N95 masks were the most effective protection against the novel coronavirus. Yet the routine request was declined by her supervisor, who advised her that a standard surgical mask was good enough.

Speaking Out About Unsafe Work Environments:

Halmy refused to work with patients until she was provided with the N95 equipment. After her refusal, she was taken to a closed room where her supervisor read from a script that threatened to charge her with insubordination and a “patient abandonment” report to the state Board of Registered Nursing (which could result in the loss of Halmy’s hard-earned nursing license). 

Retaliation in the Workplace for Refusing to Work in Unsafe Environments:

Her supervisor then asked her if she would accept a direct order to work with a specific patient who was a Covid-19 patient. She responded that she did want to take her assignment but didn’t feel comfortable going into the room with the patient without an N95 respirator. Three other nurses were allegedly subjected to the same treatment that same night, and seven others earlier that same week. All the nurses who did not accept their patient assignment without the requested N95 respirator were sent home. Since that time, the hospital has backed away from its stance that N95 masks are not necessary for nurses in the unit, but the ten nurses are still on suspension.

Nurses and Healthcare Professionals Throughout the Nation Are In Similar Situations:

Nurses at UC Irvine Medical Center, UCLA Medical Center, and many other healthcare facilities throughout California have participated in multiple candlelight vigils and protests since January 2020 in an attempt to bring attention to conditions and the need for additional protective gear and N95 respirators so they can safetly treat coronavirus patients. Registered nurse Patty Pinedo actively sought to treat residents in a West L.A. hotel that was turned into housing for the homeless during the coronavirus pandemic.

Other Essential Workers Are Also Facing Likely Exposure During Covid-19 Pandemic: 

Many other front-line occupations that require direct contact with others can result in dangerous levels of exposure to the virus, like grocery store workers, delivery drivers, etc. But most will agree that healthcare workers are the most vulnerable at this time since their work requires them to come into contact with the virus and to be in close contact with Covid-19 patients in confined spaces. Nurses spend more time with patients than most other hospital employees and staff, and the coronavirus is taking its toll on California healthcare workers. In addition to the threat of exposure to the virus, nurses seem to be suffering an outbreak of threats of termination and discipline from management in response to routine requests for standard safety equipment (or PPE), or public complaints about their facility’s lack of preparation.

More and more healthcare professionals are speaking out about unlawful practices and policies being instituted by healthcare facilities in response to shortages and unpreparedness during the Covid-19 pandemic.

If you need to file a whistleblower lawsuit or if you need to discuss workplace retaliation, 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.

Whistleblower Claims Litter the Horizon During the Covid-19 Crisis

In the past several weeks, we have seen some mighty changes due to the spread of the coronavirus. In recent weeks, we’ve also seen many employees (particularly health care industry employees) claiming workplace retaliation after reporting health and safety concerns in connection to Covid-19 and exposure to the rapidly spreading coronavirus.

Whistleblower Claims Due to Covid-19 Pandemic on the Horizon: 

According to a recent article in the Washington Post, OSHA (Occupational Health and Safety Administration) had already received thousands of complaints from employees just a week into April 2020. The allegations were from employees citing a lack of protections against Covid-19 in their work environments. On April 8, 2020, OSHA released a press release urging employers to remember that it is illegal to retaliate against workers that report unsafe or unhealthy conditions in the workplace during coronavirus.

What is the Occupational Health and Safety Act of 1970/  

The Occupational Health and Safety Act of 1970 (OSH Act) is one of the whistleblower protections, and anti-retaliation statutes employees can depend on for protection during the Covid-19 crisis. Section 11(c) of the Occupational Health and Safety Act of 1970 prohibits employers from retaliating against employees that exercise their rights under the statute, including raising a health or safety complaint.

Does the Law Require Employers to Provide a Safe Workplace?

In Section 5(a)(1) of the OSH Act (often referred to as the General Duty Clause), employers are required to provide a workplace free from “recognizable hazards” that are likely to cause death or severe harm.

Does OSHA Enforce Any Regulations Specific to Health Concerns Associated with Covid-19?

OSHA also enforces regulations that are specific to health concerns that have been associated with Covid-19.

29 CFR § 1910, Subpart I: Outlines OSHA’s Personal Protective Equipment standards requiring the use of gloves, eye and face protection, and respiratory protection for employees working in specific industries. 

29 CFR § 1920.134: Defines OSHA’s Respiratory Protection Standard and requires that employers implement a comprehensive respiratory program when respirators are necessary to protect workers. 

OSHA recently issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for health care workers during the COVID-19 pandemic.

OSHA’s Guidance on Preparing Workplaces for COVID-19, a recently published document related to the current crisis, contains recommendations for employers on how to provide a safe and healthy workspace during the COVID-19 crisis. 

What is the National Labor Relations Act? 

Certain sections included in the National Labor Relations Act prohibit employers from retaliating against an employee for various reasons. A March 30, 2020 decision from the National Labor Board (Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA-212276) indicates that this section applies to healthcare workers voicing concerns about working conditions in health care facilities. 

California Whistleblower Statutes Amid Covid-19 Crisis: 

In the state of California, we have numerous statutes that offer employees the right to make a whistleblower or workplace retaliation claim. Some of the laws are specific to healthcare workers. 

California Health and Safety Code § 1278.5: Designed to encourage medical workers to report suspicions of unsafe patient care and conditions to government entities, it prohibits healthcare facilities from retaliating against an employee or worker for presenting a complaint related to the quality of care, services or facility conditions. 

California Labor Code § 6310: Prohibits employer retaliation against employees who complain about employee safety or health. 

California Labor Code § 6311: Prohibits employer retaliation against employees who refuse to violate occupational safety or health law or any duty that would create a hazard to themselves or other employees during their job.  

Tameny Claim: In California, employees may bring a common law claim for retaliation or a Tameny claim. Policies that can give rise to a Tameny claim include protections against retaliation for reporting unsafe working conditions. Employees can bring a Tameny claim in addition to claims arising under California’s whistleblower statutes.

If you need to discuss workplace retaliation or if you need to file a retaliation 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.