Articles Posted in Uncategorized

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There are several reasons a judge can deny class certification to a group of plaintiffs, but ruling on their claims is not one of them. A California trial court judge recently dismissed a class of plaintiffs, denying their allegations that their employer did not provide them with proper rest breaks or compensate them accordingly for missed breaks.

The proposed class consists of current and former employees who worked as dispatchers and EMTs for the ambulance company, American Medical Response West (AMR). According to the lawsuit, the ambulance company allegedly maintained a rest period policy in which employees were still on call during their rest periods.

The problem with that policy is it violates California Labor law, which states all hourly, non-exempt employees are entitled to one, uninterrupted rest break, lasting at least ten minutes, for every four hours they work. Any time an employee misses one of these breaks or gets interrupted, that worker is entitled to one hour’s worth of wages, in addition to all their normal wages, tips, bonuses, etc. earned that day.

AMR argued that, by allowing their employers to take rest breaks when they were on call, they were essentially granting them the equivalent of an off-duty rest period. The trial court judge agreed and refused to grant the plaintiffs class certification. Continue reading

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The federal Fair Labor Standards Act (FLSA) defines overtime as any time spent working after eight hours a day or forty hours a week and requires employers to pay all their hourly workers one and one-half times their normal hourly wage for all overtime worked. The FLSA does provide allowances for certain types of employees to be held exempt from the overtime requirement, but the law is very specific about the requirements employees need to meet in order to be classified as overtime exempt.

One of those requirements is that employees must be paid an annual salary of at least $23,600. That’s more than the federal minimum wage, assuming the employees don’t work overtime. But if they work enough overtime that their total hours divided by their salary comes out to less than minimum wage, and it turns out they were improperly classified as overtime exempt, the employer could face allegations of failure to pay minimum wage, as well as overtime violations.

Possibly the most commonly misclassified category of overtime exemption is the executive category. In order to qualify for this category, employees must spend the majority of their time at work managing other employees and have direct say in the hiring and firing of those employees.

In order to cut costs, many companies have classified their managers, assistant managers, and supervisors as overtime exempt, regardless of whether they meet all the requirements for the overtime exemption. If these employees spend most of their time at work performing the same tasks as the hourly workers they’re supposed to be managing, it qualifies as a violation of the FLSA’s overtime requirements, and possibly minimum wage requirements. Continue reading

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The famous restaurant chain, Denny’s Inc., has recently agreed to settle a lawsuit filed against it on behalf of approximately 25,000 current and former employees. The class action wage and hour lawsuit, which was filed in California, alleged Denny’s violated both the federal Fair Labor Standards Act (FLSA) and California labor law.

The FLSA protects all hourly employees working in the United States by defining things like minimum wage and overtime. The federal minimum wage is currently set at $7.25 per hour and, under the FLSA, overtime is defined as any time spent working after eight hours a day or forty hours a week. All hourly, nonexempt employees are entitled to one and one-half times their normal hourly rate of pay for all the overtime they work.

In addition to the FLSA, each state and city has its own labor laws designed to protect the employees working within their area. All employers conducting business in the United States need to be careful to make sure they’re abiding by all relevant federal and local labor laws.

California, for example, requires its employers to provide all their hourly, non-exempt workers with regular breaks throughout the workday. Under California labor law, for every four hours of work, employees are entitled to one paid, uninterrupted rest break lasting at least ten minutes. For every five hours worked, employees are entitled to one, unpaid uninterrupted meal break lasting at least half an hour. For every day an employee does not take one of these breaks, for any reason, she is entitled to one hour’s worth of pay, in addition to all wages, tips and bonuses earned that day. Continue reading

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Although the federal Fair Labor Standards Act (FLSA) allows certain hourly workers to be paid less than the federally mandated minimum wage, the law provides conditions for the low pay. Employers can pay tipped workers (servers, bartenders, etc.) a lower minimum wage than other hourly employees, but only if those workers earn at least the federal minimum wage through the combination of their wages and tips. If they make less than the minimum wage, their employer is required to make up the difference in extra wages.

Furthermore, just because an employee receives tips and can be paid a lower minimum wage, does not exempt her from overtime compensation when she works more than eight hours a day or forty hours a week. It should also be taken for granted that every employee gets paid at least straight time for all time worked, but a recent wage and hour lawsuit alleges that this was not the case at El Vaquero restaurants in Ohio. El Vaquero restaurants denies these claims.

The lawsuit was filed by Rhonda Sanchez, a former waitress for the restaurants who alleges that El Vaquero failed to pay employees minimum wage, failed to pay overtime, and forced employees to share tips with the restaurant’s owners. As evidence to support her allegations, Sanchez provided “Weekly Time Sheets” and the official “Payroll Register” printouts to be compared to each other. The two documents together allegedly showed that employees were allegedly not paid for all of the time that they worked, and that they were allegedly paid overtime on a 2-week, 80-hour basis, rather than the 1-week, 40-hour basis that the FLSA requires. Continue reading

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The purpose of the federal Fair Labor Standards Act (FLSA) is to guarantee fair wages for all employees working within the United States. Part of that is ensuring that all workings are paid no less than the federal minimum wage for all time spent working. The Act also requires that all employees are paid one and one-half times their normal hourly rate for all time spent working in excess of eight hours a day or forty hours a week. The federal statute does provide exceptions to this rule, but it is very specific about the kinds of employees that can qualify for the exemption.

To begin with, the employee must be paid an annual salary of at least $23,600 and must be considered an administrative, executive, or professional employee. Rather than allowing employers to arbitrarily label their workers under one of these categories, the FLSA has specific job requirements which an employee must perform to qualify as exempt from overtime compensation.

In order to qualify for the administrative category, an employee must perform primarily office work and provide administrative assistance directly to an executive. For the executive category, an employee must spend the majority of her time managing other employees. Managers are often classified as exempt from overtime compensation under the executive category, even if they do not meet all of the above requirements. The professional category consists of employees who must have a particular set of skills or level of education in order to perform their job, such as doctors, lawyers, actors, musicians, and artists.

According to a recent class action wage and hour lawsuit against Petco, the store allegedly required assistant managers to perform the same duties as hourly workers, but did not provide them with the requisite overtime compensation. The FLSA contains a statute of limitations, which requires a lawsuit to be filed within two years of the violation. Petco filed a motion to dismiss the overtime lawsuit, based on the fact that the plaintiffs had exceeded the statute of limitations. Continue reading

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Most of us don’t expect our employers to pay us for the time that we spend commuting to and from work. This expectation changes, though, if driving from one location to another is a regular part of an employee’s duties. According to a recent class action wage and hour lawsuit, Nielsen Company (US) LLC, the well-known media research company that has been measuring audiences for more than fifty years, has been paying its employees for some of the time spent driving from one location to another, but not all of that time.

The class action lawsuit was filed by a Nielsen employee, who worked as a member representative for Nielsen. According to the complaint, part of the employee’s job was to visit the homes of individuals and families who were enrolled with Nielsen in order to monitor their television viewing habits and other forms of media consumption.

The complaint alleges that, although Nielsen did pay employees for most of the time spent commuting between homes, it did not pay them for the time spent commuting to the first visit of the day or from the last visit of the day. According to the lawsuit, Nielsen allegedly maintained a policy in which employees were not considered to be on the clock until they arrived at their first destination, and they were off the clock as soon as they left their last visit. Continue reading

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While class actions are a useful tool for plaintiffs bringing small claims against a large corporation, there are specific requirements which a group of plaintiffs must meet in order to attain class certification. If the court is not convinced that the plaintiffs meet all of the necessary requirements, the court will deny certification and the lawsuit will not be able to proceed.

In a recent wage and hour lawsuit against Joe’s Crab Shack, courts disagreed over whether a key component of a class action had been fulfilled: that the named plaintiff must be able to fairly and adequately represent the class. The Superior Court of Los Angeles determined that the named plaintiff, Roberto Martinez, was unable to act as “an adequate class representative”. Martinez then got three more plaintiffs to join the lawsuit and they filed another motion for class certification. The Superior Court of Los Angeles again denied class certification and the plaintiffs appealed.

The lawsuit alleges that all managerial employees of the restaurant chain were required to work at least 50 hours per week. They allegedly worked 55 hours a week on a regular basis and some claim that they worked as many as 70 hours per week. Because these employees were labeled as managers, they were paid a salary and refused overtime. However, the federal Fair Labor Standards Act requires more than just a job title in order to deny an employee the proper overtime compensation. Instead, the Act has specific descriptions of the type of duties an employee must perform in order to qualify for overtime exemption. An employee who spends the majority of her time performing the same duties as an hourly employee is entitled to the proper overtime compensation for each hour that she works in excess of eight hours a day or forty hours a week, regardless of her job title.

According to the wage and hour lawsuit, the assistant managers working at all Joe’s Crab Shack locations were expected to fill in wherever they were needed. This included performing the work of “cooks, servers, bussers, hosts, stockers, bartenders or kitchen staff”. They were also expected to conduct inventory once a week after the restaurant had closed. The lawsuit alleges that the managers spent between 50% and 95% of their time performing the same tasks as hourly employees.

The appellate court found that, although the managers varied in the amount of time they spent on non-managerial duties, the assertion that the managers spent most of their time in non-managerial tasks was the main issue at hand. The appellate court found that the lower court, in deciding not to certify the class, had relied too heavily on the testimony of general managers at Joe’s Crab Shack, who were arguing against the litigation. The appellate court noted that “A general manager is hardly likely to share the duties of assistant managers, many of whom worked exclusively as kitchen- or front-managers.”
The appellate court therefore agreed to certify the class, overturning the ruling of the Superior Court of Los Angeles.

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There are many reasons an employee might file a lawsuit to claim unpaid wages. The most commonly discussed instances are those in which employers fail to pay employees minimum wage and overtime by misclassifying the employees or by tampering with their time sheets. There are other reasons, however, that an employee might feel the need to file a lawsuit in order to recover wages they are owed.

In a recent case in New Jersey, some librarians have allegedly not been receiving the raise in wages they were promised. Unfortunately, the librarians are caught in a battle between the library’s Board of Trustees on one end, and the municipal government and the Raritan mayor on the other end. Nor is this the first time the library has found itself in a legal battle with the government this year.

Earlier in 2013, there was a dispute regarding exactly how much money the library should be able to hold onto in bank accounts. At the center of the dispute was a 2010 law, which requires libraries to give back funds that exceed 20 percent of GOE for tax relief purposes. The government officials accused the library of trying to hide the money. The librarian officials, on the other hand, insist that they are planning on using the money for renovations to a building, which they are currently in the midst of planning.

While this legal battle between the library and the government rages on, there are seven library employees who wereallegedly promised that they would receive raises, effective January 2013. Those seven employees still have yet to see any increase to their paychecks. Among these employees are the library’s Director, Assistant Director, bookkeeper, and children’s librarian.

Initially, the library director, Mary J. Pease, was promised a salary of $56,000, but a vote of the Burough Council in June approved a salary of only $52,000. She has not yet received either raise. The hourly employees of the library were promised an increase in wages of one dollar per hour. They are also still waiting on this pay raise.

The lawsuit was filed on July 1 in the Superior Court of Somerville, six months to the day after the employees were supposed to have begun receiving their higher wages. According to the plaintiffs in the case, the lawsuit is their last resort. Wage and hour lawsuits can be lengthy and the employees say they tried in vain to get their raises before resorting to legal means. Government officials, however, were allegedly unresponsive to the employees’ pleas for their raises. Now they feel that a lawsuit is their only chance of ever receiving the wages they were promised.

It seems out of place for an employee of the government to file a wage and hour lawsuit when it is the government which puts in place laws to protect workers in the state and country. However, it is not as uncommon as one might think for civil servants to file wage and hour lawsuits. Such lawsuits can include failure to get paid for mandatory breaks, tampering with time cards, or requiring employees to work overtime without the proper overtime compensation of one and one-half times their normal hourly rate.

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Cold calling is a method of recruitment whereby direct contact is made (either orally, in writing, electronically, or by telephone) with an employee who has not otherwise applied for a job. This method has proven to be much more effective than other forms of recruitment.

Upon receiving a cold call, employees are given access to employee benefit information from rival companies. They can then use this information to negotiate a higher pay rate with their current company, or they can choose to move to the new company. They can also pass this information on to their colleagues who can then use it to negotiate a higher salary for themselves, even if they don’t receive a cold call. Companies generally provide employees with a higher base pay in order to provide an incentive to stay when cold calls are a possibility.

A lawsuit against Apple, Google, Pixar, Intel, Intuit, Lucasfilm, and Adobe alleges that the companies formed a pact not to cold call each other’s employees. The lawsuit was filed by four former employees, two who worked for Adobe during the relevant time period, one for Intel, and one for Intuit. The lawsuit is seeking class action certification with the class defined as “everyone employed by Defendants in the US on a salaried basis during the period from January 1, 2005 through January 1, 2010”.

According to the lawsuit, the alleged conspiracy began in 2005 between Lucasfilm and Pixar (at the time, Steve Jobs controlled Pixar, although Apple had not yet bought Lucasfilm) and consisted of three parts:
1) each company allegedly agreed not to cold call the other company’s
employees,
2) each company allegedly agreed to notify the other if making an offer to an
employee of the other company if that employee applied for a job without having
received a cold call, and
3) each company allegedly agreed that if either company made an offer to such
an employee of the other company, neither company would counteroffer above
the initial offer.

These alleged agreements were not restricted by geography, job function,
product group, or time period.

The alleged agreement grew until it included Apple, Google, Adobe, Intel and, finally,
Intuit. None of the employees of any of these companies were ever aware of this alleged agreement. The plaintiffs allege that the agreement kept their salaries at an artificially low level and they are seeking three times the damages caused by the companies’ agreements, the costs of bringing the suit, and attorneys’ fees.

The Antitrust Division of the US Department of Justice (DOJ) conducted an investigation into the employment practices of the defendants beginning in 2009. In 2010, the DOJ filed two complaints (one against Adobe, Apple, Google, Intel, Intuit, and Pixar, and the other against Lucasfilm and Pixar). In both complaints, the DOJ proposed final judgments in which the seven companies agreed that the DOJ’s complaints “state a claim upon which relief may be granted” under federal antitrust law.

Since then, technology workers have brought civil lawsuits against the tech companies, which could expose further embarrassing communications between top executives in the firms.

However, US District Judge Lucy Koh has refused to certify the class of plaintiffs. She says that the pact affected workers in too many different ways to allow them to be all lumped together. However, she also said that the plaintiffs’ lawyers can present additional evidence to convince her that a class-action lawsuit has merit. Certification of a class-action would grant the plaintiffs much greater leverage when it comes to claiming financial settlements from the companies.

The companies deny any wrongdoing, although they have agreed not to enter into any similar agreements.

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The battle against forced arbitration rages on and, once again, the U.S. Supreme Court has been dragged into the dispute. The most recent battle is over the case Iskanian v. CLS Transportation Los Angeles, LLC. In this case, Iskanian, a driver for CLS, signed a “Proprietary Information and Arbitration Policy/Agreement” which provided that “any and all claims” arising out of his employment were to be submitted to arbitration. Despite having signed this agreement after having worked for CLS for several months, Iskanian later filed a class action lawsuit against the transportation company for allegedly failing to pay overtime, provide meal and rest breaks, reimburse business expenses, provide accurate and complete wage statements, and pay final wages in a timely manner.

When the case was first filed in California, the court deemed the arbitration agreement invalid due to a previous decision by the California State Supreme Court in the case of Gentry v. Superior Court. This decision held that employment arbitration agreements, at least as it relates to overtime, should not be enforced in class arbitration if class arbitration was found to be significantly more effective in defending the rights of affected employees than individual arbitration. This decision contained a four-part test to determine when a class action waiver in an arbitration agreement should be upheld. The four factors which courts are to consider when determining if arbitration should be enforced are as follows: 1) the size of the potential individual recovery; 2) the potential for retaliation against members of the class; 3) whether members of the class may not be informed of their rights; and 4) other “real world obstacles” to the vindication of the presumed class members’ rights overtime pay through individual, and not class, arbitration.

While the Iskanian case was pending in court, the U.S. Supreme court made a ruling in the case of AT&T Mobility v. Concepcion. This decision that state laws were pre-empted by the Federal Arbitration Act (FAA). Despite the fact that the FAA allows for local laws which might inhibit the enforcement of arbitration agreements, the Supreme Court decided to interpret it as a mandate to enforce all arbitration agreements, regardless of state laws.
Once the controversial Concepcion decision was announced, CLS moved to compel arbitration and dismiss the class claims. The trial court ruled in favor of CLS and Iskanian appealed. The Second Appellate District Court of Appeal upheld the ruling of the trial court. The case was again appealed and now the U.S. Supreme Court has agreed to hear the case.

The decision reached by the Supreme Court in this case will affect class action lawsuits throughout the country. If they side with CLS, it could make it more difficult for plaintiffs to file class action lawsuits in court, thereby making it more difficult for employees to regain their rights. This is particularly true when the individual claims of employees are small.

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