wage and hour lawsuit

Bailey v. TitleMax – FLSA Not Undercut by Employee Underreporting Hours

February 15, 2015 | by Nassiri Law

When a company knows or should know a worker is under-reporting his or her hours, the firm can’t use the employee’s role to diminish its own responsibility under the Fair Labor Standards Act.

That was according to the ruling by the U.S. Court of Appeals for the Eleventh Circuit in Bailey v. TitleMax. In its ruling, the federal appellate court reversed the summary judgment favoring the defendant company and remanded the case back to trial.

Had the court affirmed the earlier ruling, it would have allowed companies to wield superior bargaining power to pressure or even compel workers to under-report their hours, and then turn around and use that action as a defense if anyone complained. The Bailey ruling was an important one in furtherance of worker rights under the FLSA.

Augustus v. ABM Sec. Servs., Inc. – Requiring Guards to Remain On-Call No Violation of Rest Break Law

February 9, 2015 | by Nassiri Law

The California Court of Appeal reversed a $90 million class action judgment in a case of alleged rest period violations under state law, finding the requirement of security guards to remain on-call during rest breaks was not improper.

In weighing Augustus v. ABM Sec. Servs., Inc., the appellate court for the second appellate district, division one, held the requirement to remain on-call did not constitute as “performing work” under California Labor Code 226.7. The law states no employer shall require any worker to work during any meal or rest break. Employers who fail to provide a rest period or meal break to workers in accordance with the Industrial Welfare Commission’s order have to pay the worker an additional hour of pay at the worker’s regular rate for each rest period or meal break not provided.

The ruling is a disappointing one for California workers, but it does help us to better define the kinds of cases worth pursuing.

Rise in FCRA Lawsuits: Employer Liability in Background Checking

January 19, 2015 | by Nassiri Law

Employers are being more heavily scrutinized for taking potentially illegal action when background checking employees either prior to hire or during the course of employment. A class action lawsuit was filed in a Missouri federal court alleging Michaels, a craft store chain, violated the Fair Credit Reporting Act in its hiring process. According to the complaint, the store violated the law because it failed to properly disclose to candidates that a credit report could be requested and reviewed during the application process.

The FCRA governs how credit reports, criminal background checks, traffic reports and other consumer records can be used during the hiring process. Employers do have the right to access these records. However, they must follow a very strict set of guidelines to ensure compliance with the law. Even though the majority of job applicants may be unaware of their rights under the law, employers should be in full compliance when requesting information on a job candidate.

Michaels is far from the only alleged offender. Whole Foods, Publix and Dollar General are all facing lawsuits over purported FCRA violations.

Drivers Win $1 Million in Wage and Hour Class Action

January 13, 2015 | by Nassiri Law

Nationwide, there has been a rise in wage and hour claims related to mis-classification. In a recent success story for employees in California, a trial court awarded truck drivers nearly $1 million in damages plus attorneys’ fees, litigation expenses and additional enhancements in the class action. The defendant employer, Oakland Port Services Corp (AB Trucking) had previously appealed a trial court decision on the grounds that federal law preempted California’s meal and rest break requirements. The appellate court disagreed and reaffirmed the trial court decision.

Two drivers for the defendant company filed a class action lawsuit against Oakland Port Services Corp after the company denied wages for weekend work. The employer improperly misclassified the drivers as “unpaid trainees” and failed to provide state mandated meal and rest breaks.

The trial court had previously certified a class of drivers to performed work for the company out of its Oakland facility. In May of 2013, the trial court awarded the drivers a total of $964,557, including $487,810.50 in attorneys’ fees, $42,106.16 in litigation expenses, as well as $20,000 in class representative awards.

California Judges Sue Over Pensions

January 5, 2015 | by Nassiri Law

In addition to wage and hour claims that involve violations over the course of employment, former employees may have rights to recover for lost pensions.

In a recent case, a group of judges has filed a lawsuit over California’s pension system, known as Calpers, as well as the state of California for doubling contribution requirements. According to Courthouse News, the current state pay grade entitles the six California Superior Judges to more than $181,000 per year. A lawsuit filed on December 23, 2014 alleges the pension contributions should be lowered by $13,000 a year.

Six California Superior Court Judges who were elected in 2012 claim that a new pension reform law that when into effect in 2013, raised contributions to 15 percent of their salary from 8 percent. The new law was signed by Governor Jerry Brown. According to the judges, the original 8 percent contribution agreement was set when they were elected, and the contributions cannot be adjusted. Representatives from the California Public Employees Retirement System (Calpers), have stated publicly that the lawsuit is too recent to comment on. The agency is considered America’s biggest public pension fund and manages assets upwards of $300 billion.

Fired Black Editor Sues People Magazine for Discrimination

December 19, 2014 | by Nassiri Law

Discriminatory practices in the workplace can impact the lowest paid minimum wage workers to high paid executives. There have been cases of discrimination in every industry, from manufacturing to law firms. Earlier this year, a black editor of People Magazine filed a lawsuit alleging discrimination. According to the complaint, the editor was the only black senior employee and alleged that her former boss left her out of magazines, dismissed stories centering around black victims and even disparaged her way of speaking, telling her that, “You’re not at Essence anymore.”

According to reports, the plaintiff has a degree in English and a Master’s in Journalism. In addition to her educational accomplishments, she also held an adjunct position at New York University. The complaint alleges that throughout her successful career, no other editors had a problem with her or her work. People Magazine and senior level editors systematically discriminated her for the way she spoke and communicated, and related it to her race. The lawsuit also alleges that the magazine had a discriminatory editorial policy. According to the complaint, the magazine is entirely run by white people and focuses exclusively on white celebrities and individuals.

The editor was fired last May during what the company called a “reduction in force,” though the plaintiff alleges that the termination was directly tied to her race. She is seeking financial damages against People Magazine as well as its parent company, Time Inc., as well as her supervisor and the former executive of the magazine. While many employment law and discrimination cases will settle out of court, the attorney for the plaintiff is hoping for a trial by jury to send a message to other media companies that they cannot discriminate against employees or when making decisions about which people to feature in their stories or articles.

Unpaid Interns and Volunteers Covered by FEHA in 2015

December 18, 2014 | by Nassiri Law

California law will now give unpaid interns and volunteers a number of the same legal protections as regular employees. Under the California Fair Employment and Housing Act, employers are prohibited from discriminating against employees based on race, religion, national origin, ancestry, disabilities, sex, gender, age sexual orientation, or gender expression. Assembly Bill 1443 will expand the protections against discrimination and harassment to unpaid interns and volunteers. The law will go into effect January 1, 2015. The new law will also require employers to accommodate the religious beliefs of volunteers and unpaid interns.

If you are an unpaid intern or volunteer, you should know your rights under California law. The new protections require employers to expand their policies that prohibit discrimination and harassment. Employers should also make necessary changes to handbooks, policies, and guidelines to ensure that interns and volunteers are protected against unlawful actions. Employers are also responsible for informing interns and volunteers about these protections and offer procedures for reporting harassment and discrimination.

Employers are responsible for ensuring that workers are protected against harassment and discrimination. Extending this protection to unpaid interns and volunteers means that employers with 50 or more employees must provide at least two hours of training and education regarding sexual harassment to all supervisory employees. These training sessions must take place to reiterate issues and processes every two years. To better protect employees and to prevent liabilities, many employers are providing this training to both supervisors as well as all members of the staff. Additional protections could include providing training to volunteers and interns so that they know their rights in the workplace.

Joint Liability for Businesses and Contract Vendors in 2015

December 15, 2014 | by Nassiri Law

One of the reasons that using third-party vendors and other staffing companies is attractive to businesses, is that they were able to shift legal responsibilities elsewhere. Needing manpower didn’t require concern for worker protections, including workers’ compensation, proper training, or other benefits. Businesses were able to quickly and efficiently get staffed without worrying about employment and labor laws. Things are about to change in California. The contractor model has been under scrutiny for years and many courts agree with the criticism. In 2015, businesses and contract vendors will be held jointly liable for any employment law violations.

In June of 2014, the Ninth Circuit rejected an independent contractor agreement that made Georgia the venue, finding that the contract was in fact an employee under California law. Later in the summer, the California Supreme Court opened the door for more plaintiffs to gain class action certification in contractor misclassification disputes. Another Ninth Circuit decision overturned a lower decision, and reclassified hundreds of delivery drivers as employees. All of these decisions and regulatory shifts have made it clear that the contractor-model is under scrutiny and businesses may no longer be able to shield behind misclassification.

The difference between an employee and a contractor primarily turns on the duties and amount of responsibility given to the individual worker. Many contractual arrangements require workers to sign away their rights as an employee, even though they should have rights to benefits and other protections. A new California law, effective in 2015, will force contract vendors and businesses to start ensuring collaborations and compliance, as both will be held liable in the event of any wage and hour or other violations. The new regulation is critical to protect workers’ rights in an era where third-party contracting companies benefit companies, while exploiting workers without adequate benefits and pay.

2015 California Laws and Employee Protections

December 6, 2014 | by Nassiri Law

Every year, California businesses need to learn and adjust to new employment and labor laws and regulations. As the end of 2014 draws near, corporations and small-businesses alike will be shifting gears to implement new policies in accordance with California laws slated to go into effect in 2015. In addition to employers learning their new obligations, employees should consider their rights and take legal action in the event of a violation. Not surprisingly, the regulations cover a variety of issues including wage and hour law, discrimination, and leave of absences. The following is a brief summary of many of the laws that will take effect in 2015:

Expanded Coverage for Emergency Duty: Under current California law, employees are protected from discharge or discipline when they take time off to perform emergency volunteer service. The new law expands its definition from “emergency rescue personnel,” to include all individuals who perform services for government agencies.

Expanded Definition of Protected Individuals: Under the Fair Employment and Housing Act (FEHA), new law will cover employees as well as unpaid interns and volunteers, employees receiving public assistance, and driver’s licensed persons who are otherwise undocumented.

Indian Tech Workers Exploited by Brokers: Wage Theft and Abuse

November 11, 2014 | by Nassiri Law

A recent report has exposed the myriad abuses committed against Indian high-tech workers employed by American companies. According to The Guardian, brokers have “hijacked” the professional visa program, creating a system of “bondage” resulting in wage theft and other abuses against Indian workers. Many workers who have quit or tried to leave the system have even been sued by the brokerage companies. In the United States, professionals can obtain a temporary visa to work for companies who are seeking “uniquely talented employees” for specific jobs. In the tech market, labor brokers will often sponsor the visas and contract out employees to tech companies and government agencies.

The workers are specifically trained and offer special skills in building databases, testing software and other high-tech projects. Critics of this indentured service-like arrangement for high-tech workers have pointed out that workers are exploited through humiliation, intimidation and other legal threats. In some cases, Indian workers have been sued for upwards of $50,000, just for trying to leave the company. The firms are also capitalizing on workers’ hopes for achieving the American Dream and finding permanent employment in the U.S.

Workers who obtain an H-1B visa through a brokerage firm are forced to comply with illegal working conditions, and are threatened if they report abuses. Based on government and external reports, there have been thousands of documents filed that evidence intimidation, restrictions on employment contracts, and other legal loopholes that deprive workers of their rights. According to The Guardian, there has been at least $29.7 million illegally withheld from 4,400 tech workers between 2000 and 2013. The numbers are alarming considering they barely scratch the surface in identifying wage theft that may have occurred in other firms and underground financial arrangements.