Former Advance Kids Employee Alleges Misclassification

A former employee of Advancec Kids, Inc. alleges misclassification led to overtime violations, wage and hour violations, etc.

The Case: Lillye Buckans, v. Advance Kids, Inc.

Court: Sacramento County Superior Court

Case No.: 34-2021-00303450

The Plaintiff: Lillye Buckans, v. Advance Kids, Inc

The plaintiff in the case is Lillye Buckans, a former employee of Advance Kids, Inc. According to court documents, Buckans was employed by the defendant from June 2019 through August 2020. During her time with the company, Buckans was classified as a non-exempt employee, paid an hourly wage, and was entitled to meal and rest periods, minimum wage, and overtime pay as mandated by employment law. Buckans brought a California class action on behalf of herself and other individuals previously employed by Advance Kids, Inc. who were classified as non-exempt employees anytime from four years prior to the filing of the complaint through the ending date determined by the court.

The Defendant: Lillye Buckans, v. Advance Kids, Inc

The defendant in the case is Advance Kids, Inc. Advance Kids, Inc. is a California corporation that conducts a substantial amount of their business in the state of California. The company’s main services include in-home services, center-based services, educational services, and non-public preschool services to assist individuals of all ages and disabilities.

The Case: Lillye Buckans, v. Advance Kids, Inc

According to the complaint, Advance Kids, Inc. allegedly violated California Labor Code. Buckans claims the company failed to provide her (and other employees in similar situations) with legally required meal breaks, and rest periods. Buckans also alleges that the company failed to pay accurate overtime wages in accordance with employment law. Additional allegations of employment law allegations were also listed in the lawsuit including: failure to pay minimum wage, failure to provide itemized wage statements, failure to reimburse employees for required expenses, and failure to provide wages when due. The plaintiff also alleges that Advance Kids, Inc. engaged in unfair competition due to their company-wide policy allegedly failing to accurately calculate and record missed meal and rest periods for the plaintiff and other California workers.

If you have questions about California labor law violations or overtime pay violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Taco Bell Recruiter Claims he was Denied Benefits through Misclassification

A recent California complaint alleges violations under the Employee Retirement Income Security Act (ERISA) and related state law actions.

The Case: Alders v. YUM! Brands, Inc, Taco Bell Corp., et al

The Court: United States District Court, Central District of California

The Case No.: 8:21-cv-01191-JLS-DFM

The Plaintiff: Alders v. YUM! Brands, Inc, Taco Bell Corp.

The plaintiff in the case is Tim Alders, a 63 year old resident of Orange, California. According to the complaint, the plaintiff was employed by Taco Bell through Yum! Brands from 1995 through 2020 as an executive recruiter. The plaintiff alleges that during the time he worked for the company, he met the test for employee status under the Nationwide Mutual Insurance v. Darden, 503 U.S. 318 (1992) and Dynamex Operations West Inc. v. The Superior Court of Los Angeles County and Charles Lee, Real Party in Interest, 4 Cal.5th 903 (Cal. 2018). Plaintiff claimed other workers in a similar situation were eligible to participate in various YUM Plans under the terms of the governing plan documents even though they were not labeled as “employees.” Alders filed suit for unpaid benefits he did not receive due to misclassification as an independent contractor.

The Defendant: Alders v. YUM! Brands, Inc, Taco Bell Corp.

The defendants in the case are YUM! Brands and Taco Bell. YUM is incorporated under North Carolina state law (1997). The main offices of YUM are located in Kentucky, and the company conducts business throughout California. The second defendant listed in the case is Taco Bell. Taco Bell is a California corporation operating out of Irvine, California. Taco Bell is a subsidiary of YUM. Taco Bell also conducts business throughout California. Various individuals were also listed as defendants.

The Case: Alders v. YUM! Brands, Inc, Taco Bell Corp.

Alder, the plaintiff, alleges he was misclassified during the 25 years he worked for the company, and by doing so, the company denied him retirement and other benefits. The lawsuit seeks recognition of his 25 years of employment for purposes of calculating his retirement benefits for the three different YUM Plans sponsored by the company. The complaint alleges that according to the plans’ governing documents, common law employees were eligible to participate in the Yum Plans, and that the plaintiff met the test for employee status in accordance with prior case law. Based on prior case law, the plaintiff alleged the defendant misclassified him as an independent contractor. The plaintiff argues his status as an employee noting that he participated in Yum corporate events, team meetings, the company dictated his work hours, he was issued a corporate email account, assigned an office at the company’s corporate headquarters, and was given access to the company’s computer system to complete his work. The company also prohibited Alders from accepting similar work from other fast food entities. While other similarly situated workers received benefits, Alders only received monthly compensation as an independent contractor.

If you have questions about California employment law or if you need to file an employment law lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California Model Alleges Agency Failed to Provide Payment In Accordance with Contract

After completing an assignment based on a contract with a California-based agency, a California model claimed that the company actually owed her significantly more due to “waiting time penalties.”

The Case: Brighton Collectibles, LLC v. Hockey

The Court: Super. Ct. No. 19CV06616, Santa Barbara County

The Case No.: 2d Civ. No. B307235

The Plaintiff: Brighton Collectibles, LLC v. Hockey

The plaintiff in the case is Natalie Hockey. Hockey was a model who directed her modeling agency to negotiate a contract on her behalf. The contract was with Defendant Brighton Collectibles, LLC, the defendant in the case. According to the contract, the agency agreed that Plaintiff would perform a one-day modeling shoot (a job estimated to last 10 hours) for Brighton Collectibles in exchange for $3,000, payable on receipt of the invoice. Hockey completed the 10 hour modeling job as described. After the job, Hockey sued the agency, alleging that the Defendant was her employer and violated Labor Code section 201 by not paying her the total amount due at the end of her modeling shoot day, and claiming that Brighton Collectibles actually owed her waiting time penalties totaling $90,000.

The Defendant: Brighton Collectibles, LLC v. Hockey

The defendant in the case, Brighton Collectibles, LLC, quickly cross-claimed for fraud. The cross-claim argued that the Plaintiff had represented that she would be paid $3,000 upon receipt of an invoice, and that the Defendant based their actions on that representation. The defendant further claimed that they were damaged by being subjected to the risk of liability to Hockey (amounting to the claimed $90,000). Hockey responded by filing an anti-SLAPP motion, seeking to strike Brighton Collectible’s cross-claim. The plaintiff’s motion was granted in trial court, but the defendant appealed.

The Case: Brighton Collectibles, LLC v. Hockey

The California Court of Appeal reversed the trial court's order granting the plaintiff’s anti-SLAPP motion attempting to strike Brighton's cross-claim for fraud. Even if the court assumed that Hockey met her burden of showing that the defendant’s cross-claim for fraud arose from protected conduct, the reversal was required based on the probability that the agency would prevail on its cross-claim. According to the evidence submitted, the court determined that the Defendant would likely be able to show that Hockey made a misrepresentation when she told the company to pay the agency for her modeling services upon receipt of an invoice, rather than immediately upon her “termination” as an employee at the end of the day (or the conclusion of the modeling shoot). Additionally, the court supposed it could be inferred that the plaintiff knew the misrepresentation was false based on her actions and intended for the agency to rely on her misrepresentation. The defendant did so - justifiably. And the plaintiff’s misrepresentation damaged the defendant by exposing the agency to $90,000 in waiting-time penalties (plus additional expenses due to attorney’s fees and costs associated with the case).

If you have questions about California labor law violations or contract negotiation, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Do Overtime Rules Apply to Missed Meal Breaks in California?

An opinion issued on July 15, 2021 by the California Supreme Court in regard to meal period premiums impacts employers providing non discretionary payments for work performed by California employees.

The Case: Ferra v. Loews Hollywood Hotel, LLC

The Court: California Supreme Court

The Case No.: S259172

The Issue: Ferra v. Loews Hollywood Hotel, LLC

​​Generally speaking, non-exempt California workers may not work more than five hours without an uninterrupted meal period of at least 30 minutes being offered by their employer. If a California worker completes a shift longer than 10 hours, a second unpaid period of at least 30 minutes is required. An employee may waive their first meal period if six hours completes their day at work. The second meal period may be waived by the employee if the first meal period wasn’t waived and if the California employee’s shift is no longer than 12 hours. Additionally, California employers must provide rest breaks (for a minimum of 10 minutes) to their employees for every three and half hours they work. Employees cannot waive their mandatory rest breaks. When employees are not able to take their mandated meal breaks or rest breaks, employers must pay the employee a premium (Labor Code Section 226.7(c)).

The Question: Ferra v. Loews Hollywood Hotel, LLC

California law requires employers to provide one hour of pay for each workday in which they miss their mandatory meal breaks or rest periods. Prior to Ferra v. Loews Hollywood Hotel, LLC, employers and the lower courts seemed to agree that the premium for a missed meal or rest period was one hour of pay at the employee’s regular rate or pay. The case at hand brought up the question of whether or not Labor Code Section 226.7(c) ‘s reference to an employee’s “regular rate of pay” should take into account non discretionary forms of payment earned by employees in addition to their hourly wage. The reasoning presented in the case compared the calculation of compensation for missed meal and rest periods to the calculations used for overtime pay rates.

The Ruling: California Justices Say Overtime Rules Do Apply To Missed Meal Breaks

The California Supreme Court held that meal period premiums must consider non discretionary payments when designating the employee’s regular rate of compensation. Non Discretionary payments can refer to a variety of pay methods, but a common form of non discretionary pay is a bonus. In addition, the Court held that the decision would apply retroactively. The statute of limitations for underpaid or unpaid meal and rest break premiums is three years (or four years if the plaintiff also alleges a violation of California’s Unfair Competition Law). Claims under Private Attorneys General Act have a statute of limitation period of one year.

If you have questions about payment for missed meal breaks or rest periods or if you’ve experienced other labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Defendant Failed to Establish Existence of Arbitration Agreement

In recent news, a skilled nursing facility faced with a lawsuit filed by a former employee attempted to compel arbitration, but there was a question about the existence of the cited arbitration agreement.

The Case: Bannister v. Marinidence Opco, LLC

The Court: California Court of Appeals

The Case No.: A159815

The Plaintiff: Bannister v. Marinidence Opco, LLC

The Plaintiff in the case, Maureen Bannister, is a former employee at Marinidence Opco’s skilled nursing facility. Bannister filed a lawsuit against the Defendants alleging discrimination, retaliation, defamation, etc.

The Defendant: Bannister v. Marinidence Opco, LLC

In response to the complaint, Marinidence Opco, LLC, the defendant in the case, moved to compel arbitration, claiming that when they acquired the skilled nursing facility from the previous owner, Bannister electronically signed an arbitration agreement.

The Case: Bannister v. Marinidence Opco, LLC

The plaintiff in the case responded to the defendant’s claims that she signed an arbitration agreement at the time of the facility acquisition by presenting evidence that she never saw the arbitration agreement during the onboarding process or touched the computer that she was supposed to have used to provide her electronic signature on the agreement. Accepting the evidence the plaintiff presented as establishing that she never signed the cited arbitration agreement, the court denied the defendant’s motion and held that the defendant failed to meet their burden of establishing by a preponderance of evidence that a valid arbitration agreement exists. (The system in place had no employee-specific usernames or passwords to access the onboarding portal, and social security numbers were available in personnel files). The defendant appealed, but the California Court of Appeal affirmed, holding that there was substantial evidence indicating that the defendants failed to prove the plaintiff electronically signed an arbitration agreement. Without the use of unique usernames and passwords for each individual employee, it is difficult for employers to prove that a specific employee digitally signed an arbitration agreement.

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

Did General Atomics’ Wage Statements Violate Wage Statement Requirements?

In the General Atomics v. Superior Court case, the layout of the defendant’s wage statements are questioned in connection with mandatory wage statement requirements.

The Case: General Atomics v. Superior Court

The Court: California Court of Appeal

The Case No.: D07821l

The Plaintiff: General Atomics v. Superior Court

Plaintiff Tracy Green filed suit against General Atomics alleging that the company failed to provide accurate, itemized wage statements in accordance with employment law requirements (in violation of Labor Code section 226(a)(9)).

The Defendant: General Atomics v. Superior Court

The defendant in the case is General Atomics. The company issued wage statements that included entries for regular rate of pay and overtime pay. The entries for regular rate hours and pay included all hours worked by an employee during the pay period, including overtime hours. The wage statements also identified the number of overtime hours, and calculated pay at a rate of 0.5 times the employee’s regular rate.

The Case: General Atomics v. Superior Court

The plaintiff in General Atomics v. Superior Court claims that the defendant failed to identify an accurate rate of pay for overtime wages. According to the plaintiff, the company showed .5 times the regular rate of pay instead of the required 1.5. The plaintiff did not claim that the employer incorrectly calculated overtime pay or that they failed to pay the accurate amount of pay. The Defendant moved for summary adjudication, arguing that their wage statements were compliant because they showed the applicable hourly rates; standard contractual hourly rate and overtime rate, as well as the hours worked at each rate. General Atomics’ motion was denied in trial court. The defendant responded by challenging the trial court’s order by petition for writ of mandate. The California Court of Appeal granted the petition for writ of mandate, so the trial court vacated the order and entered an order granting General Atomics’ summary adjudication motion. The court found that due to the complexities of determining overtime compensation in various contexts, the format used by the defendant was acceptable, and that format appropriately conveyed the information required by Section 226 and allowed employees to determine using simple math whether they were paid at an accurate rate.

If you need to discuss violations of California state law or if you need to file a California class action 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.

Jiffy Lube Employee Files Suit Claiming FEHA Violations

An African-American Jiffy Lube employee filed suit claiming intentional infliction of emotional distress and Unruh Act violations. The claims were made against a non-employer company and the representative they sent to present a new product/service during a training session to Jiffy Lube employees.

The Case: Smith v. BP Lubricants USA Inc.

The Court: California Court of Appeal

The Case No.: E073174

The Plaintiff: Smith v. BP Lubricants USA Inc.

African-American employee Plaintiff Robert Smith, an African-American employee at Jiffy Lube, attended a presentation for Jiffy Lube employees to learn about a new product by Defendant BP Lubricants USA, Inc. (“BP”). A BP company representative led the presentation.

The Incident: Smith v. BP Lubricants USA Inc.

The BP Lubricants USA Inc. representative allegedly made racially offensive comments to the plaintiff in front of his coworkers during the training presentation. Approximately 50 Jiffy Lube employees were in attendance (some at the supervisory level) when the BP representative allegedly made racially charged comments including comparing the plaintiff’s voice to Barry White, indicating the couldn’t see the plaintiff, and asking other attendees how they would feel if the plaintiff’s “big banana hands” were working on their vehicles. According to Smith, all the employees in attendance with the exception of other African-American employees laughed at the inappropriate comments (including three of the plaintiff’s own supervisors).

The Case: Smith v. BP Lubricants USA Inc.

Smith sued BP and the individual company representative for harassment (in violation of the Fair Employment and Housing Act (FEHA)) and racial discrimination (in violation of the Unruh Act). While BP is not the plaintiff’s employer, Smith argues that they violated FEHA’s prohibition on racial harassment in the workplace when they “aided and abetted” the Jiffy Lube employees and supervisors’ discriminatory and harassing behavior. Smith also sued the BP representative who allegedly made the offensive statements to the group for intentional infliction of emotional distress (IIED). The Defendant in the case demurred and the trial court sustained without leave to amend. Smith appealed. The California Court of Appeal affirmed the order holding that Smith failed to allege any facts suggesting concerted activity between the named entities (BP, the BP representative, and Jiffy Lube) to violate FEHA, which is required for non-employer liability for “aiding and abetting” workplace discrimination under FEHA. However, the appeals court reversed the trial court’s orders in relation to the IIED and Unruh Act claims.

The Court’s Findings: Smith v. BP Lubricants USA Inc.

The court held that the BP representative’s actions were intentional and unreasonable and likely to result in illness through mental distress, which rendered the actions extreme and outrageous as an IIED claim requires. The appeals court also found that Smith plausibly alleged that the representative was acting as the business establishment while offering the training materials through the presentation since he was acting on behalf of BP Lubricants, a business generally open to the public. The court also allowed that the plaintiff sufficiently alleged that the BP representative treated Smith differently during the course of the presentation by targeting only him with racist comments, which violates the Unruh Act. This case is a reminder that businesses can be subject to Unruh Act liability in relation to training programs or presentations even if the presentation or training itself is not open to the public.

If you need help with employment law violations in the workplace, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP today. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.