Articles Posted in Wage and Hour

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Between state and federal laws governing different parts of the United States and different laws taking precedence in different places, keeping it all straight can be hard enough for natives of the country, much less those who immigrate from other parts of the world.

According to a recent class action wage and hour lawsuit, Wipro, an IT service and consulting company, allegedly took advantage of foreigners who it is claimed were unfamiliar with U.S. labor law.

The lawsuit was filed by Suri Payala in Los Angeles. Payala is a citizen of India who came to work in the U.S. using an L-1B visa, which classifies a foreign worker as qualified with specialized knowledge and allows the employee to work in the U.S. for up to five years. Continue reading

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The healthcare industry is known for its long hours and poor working conditions. Shifts lasting up to twelve hours are common and many healthcare workers don’t even think twice about agreeing to such harsh terms. But healthcare workers are protected by the same labor laws as all other employees working in the United States. This includes proper overtime compensation for all time spent working after eight hours a day or forty hours a week.

Under the federal Fair Labor Standards Act (FLSA) all employees working in the United States are entitled to no less than $7.25 per hour. Tipped employees can be paid less, but healthcare workers do not earn tips. In addition to the FLSA, each state has its own laws to regulate employment and minimum wage. California is just one of the states that requires employers to pay a higher minimum wage than the FLSA. Continue reading

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While it is doubtless that many firefighters love their jobs, most of them don’t do it for free. They still need to earn a living and they expect to be paid for all of the hours that they work. This includes overtime, and in at least one recent case, has led to 25 current and retired firefighters suing their town over alleged failure to pay proper overtime wages.

The firefighters of Seabrook, New Hampshire allegedly worked a schedule which was on a four-week rotation which allegedly dates back to 2008. Each firefighter was required to work two 24-hour shifts per week for three consecutive weeks. On the fourth week, the firefighter was required to work one 24-hour shift. This means the firefighters were working 168 hours for every four weeks which averages out to 42 hours per week. This kind of schedule is still common in several areas of New England employment, but it is widely regarded as an old-fashioned approach. Regardless of tradition, employers must still be careful to meet all of the state and federal guidelines for wage and overtime pay.
A settlement has recently been reached in the lawsuit amounting to $207,000. This allows for $195,000 to pay the firefighters their back wages and $12,000 in attorneys’ fees. However, the amount the town will pay to the retired firefighters out of the firefighters’ retirement fund has yet to be determined. The settlement has been accepted by approved selectmen, but it needs approval from the trial court judge before it can be finalized.

Each of the firefighters will receive their long-awaited back pay in a lump sum payment. The firefighters still have yet to agree as to how the lump payments will be made. Although the complaint alleged 104 unpaid hours per year for each of the firefighters who participated in the class action, the amount of real damages is difficult to determine since each firefighter was earning different wages based on rank and seniority. It is safe to say however, that had the parties not agreed to settle, the town could have ended up paying much more than the estimated $207,000. Although the town agreed to the settlement, it is still unclear how they are going to pay said settlement. At least some, if not all of it, may be coming from Seabrook’s reserve funds.

The town is not changing its existing schedule for firefighters. However, from now on, two hours will be added to the firefighters’ time sheets and wages in order to avoid another wage and hour lawsuit at a later date.

This case is unusual because, although all of the firefighters who participated in the class action were members of the firefighters’ union, they chose a class action lawsuit over unionizing. However, the attorney representing the firefighters in this case is also the attorney for the firefighters’ union. No reason has been given as to why the firefighters chose not to unionize to address this particular issue.

It is also worth noting that this case went into mediation because it is an automatic requirement in New Hampshire that all civil suits must enter into mediation. This case required only one day of mediation before both parties reached an agreement.

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While many employees fight with their employers to receive their earned overtime compensation, some workers have to fight to get paid at all. One company in particular has recently been accused of failing to properly pay its employees in a timely manner.

At Bellflower Medical Center, the nurses allege that they have had their paydays moved around and have been given paychecks that bounced when they tried to cash them. One employee alleges that, since January 11, multiple checks have bounced, some of them repeatedly. For nurses, who often live paycheck-to-paycheck, this can cause much undue hardship and add unnecessary stress to their lives.

The California Department of Labor Relations has fined the medical center $7 million for failing to pay employees in a timely manner and for the bounced checks. The California Department of Labor Relations cited Pacific Health Corporation, which owns four medical centers in California, including Bellflower, $524,300 for the alleged tardy payment of wages and for the paychecks that bounced. The company was also cited an additional $6.5 million for allegedly failing to provide employees with complete and accurate wage statements.

The inclusion of complete and accurate wage statements is very important in employment lawsuits. Without them, employees have no record of how many hours they worked and how much they got paid for those hours. Failure to provide complete and accurate wage statements also reflects poorly on the employer, by making it seem that the employer is trying to withhold earned wages from its employees.

Plaintiffs can use this lack of complete and accurate wage statements as evidence in court that their employer was knowingly and intentionally violating the Fair Labor Standards Act. According to experienced employment attorneys, if a plaintiff is able to provide proof that their employer willfully violated the Fair Labor Standards Act, that evidence has the potential to double the amount of punitive damages that the plaintiff will be made to pay.

This is not even the first time that the Bellflower Medical Center has been made to pay (literally) for its alleged illegal practices. It has also reportedly been involved in a settlement with the federal government, after it allegedly fraudulently charged Medicare for fake procedures. This is not likely to gain the medical center any sympathy with the public, as Medicare is funded by the government and, by extension, taxpayers.

Our Chicago overtime lawyers have learned that Bellflower Medical Center has allegedly been told that, if it continues to allegedly violate labor laws, it will face further penalties. As of February 2013, the California Department of Labor Relations received reports of delayed wages and insufficient funds on paychecks. Upon further investigation, the department also found that employee benefits were allegedly being deducted from paychecks, but allegedly were not being paid to the benefit providers, resulting in employees having their coverage cancelled.

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This blog has previously dealt with the issue of the time taken to change into and out of protective gear required to do one’s job and whether or not that time should be compensated. The U.S. Department of Labor published an opinion stating that, since putting on and taking off the protective gear is required to perform the job, it is considered to be a “principal activity” and any time spent performing a principal activity should be paid by the employer.

Another such case has recently been filed in California by a former employee of Dole Food Company. Jose. L. Hernandez is proposing an overtime class action case against the major food company for time spent putting on and taking off personal safety equipment, which was required for him to perform his job. Allegedly, Dole employees are required to come in before the start of their shift to put on the protective gear, wait until the end of their shift before taking it off, and the gear must be taken off for meal and rest breaks and put back on again before their shift resumes. All of this is done on the employee’s own time and Hernandez is claiming that employees should be paid for that time.

The personal safety equipment is required, not only for the employee’s safety, but also to protect the environment and the food being handled. Guidelines on such protective measures have been getting tighter over the past twenty years and an e. coli outbreak in 2006 demonstrates the need for these protective measures to ward against cross contamination of human-borne pathogens and other bio hazards.

The lawsuit also alleges that, in addition to time spent donning and doffing the personal safety equipment, employees spend time waiting in lines, walking to and waiting at work stations, and washing and sanitizing. All of this is on their own time and, according to the lawsuit, should be paid by the employer since it is all necessary to the work they perform. When taken together, especially over an extended period of time, this adds up to hours of work for which employees are not getting paid.

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While class actions can be beneficial and efficient for lawsuits involving multiple plaintiffs, those plaintiffs should always be careful to make sure they fit all the requirements of a class action before filing their lawsuit. The First District Court of Appeals has recently ruled with the San Francisco Superior Court that the former employees filing a lawsuit against Wet Seal are not eligible for class certification.

The class, had it been certified, would have consisted of about 12,000 former employees who had worked at 74 Wet Seal and Arden B. stores in California during the four years leading up to the complaint, which was filed in 2008. The lawsuit alleges that employees were required to purchase Wet Seal merchandise to wear at work without compensation. They also allege that they were regularly required to travel for work purposes (such as traveling to other store locations for meetings, training, etc.) without reimbursement.

Both the San Francisco Superior Court judge and the First District Court of Appeals has ruled that the plaintiffs are not suitable for class certification because of evidence that it was not company policy for employees to purchase or wear Wet Seal merchandise. There is also evidence that it was company policy to reimburse employees for work-related travel expenses. Some employees have testified that they were not required to purchase Wet Seal clothing and that they were reimbursed for travel expenses.

In fact, the clothing policy, as revised in 2005, explicitly states that “employees are not required to wear the Company’s clothing” and that employees were required to “reflect Wet Seal style during work hours” and to wear “clothing consistent with Wet Seal’s brand” if they did not own Wet Seal clothing. The company also has written policies providing for work-related travel expenses and had a standard form for employees to claim reimbursement.

If some employees were required to purchase Wet Seal merchandise against company policy, then the case can still be pursued by those individuals. Similarly, if certain employees were not reimbursed for travel-related expenses, those individuals can also pursue litigation. However, because of the conflicting testimony from plaintiffs, and because it is proven that the allegations were not part of company policy, they do not properly represent the entire class and cannot therefore be legally certified.

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Apple is being brought to court once again, this time for allegedly attempting to lower its labor costs by classifying its call center employees as independent contractors. Apple contracted Arise Virtual Solutions to act as the hiring agency for Apple which allowed Apple to avoid claiming the call center personnel as Apple employees. In so doing, Apple allegedly avoided paying for employee training, business expenses, social security, Medicare, unemployment insurance, worker’s compensation insurance, and the employer’s share of tax payments to the federal and state governments. Apple, instead, allegedly placed the burden of these expenses on the employees.

The plaintiff alleges that he and the other call center employees were required, as a condition of their employment, to form a separate Virtual Services Corporation which allegedly acted as a shell corporation in order to shield Apple from its liability for business related expenses.

Apple allegedly controlled every part of the work conducted by the call center personnel, providing the approved scripts for calls, order forms, and report formats. Neither the call center employees nor Arise were allowed to use any initiative or judgment in controlling the work of the call center employees. Apple had to approve all changes. All training materials were provided to Arise by Apple at no cost to Arise, although Arise charged the employees for training. All of the work of the call center employees was allegedly incorporated by Apple into the organizational structure of the Apple enterprise so that customers calling were led to reasonably believe that they were speaking with Apple employees and Apple allegedly instructed the call center employees to answer the calls as employees of Apple. The call center employees were also allegedly precluded from working for Apple’s competitors and were only paid a fraction of the total sum paid by Apple to Arise.

Upon hire, employees were allegedly led to believe that the position was capable of paying 28 cents per talking minute. But Apple allegedly had a system in which the employees were paid between $12 an hour and $15 an hour while logged onto Apple’s software system “Softphone”. Allegedly, employees were paid only for time spent actually on the phone with a customer or logged into the system as “Available Call Mode”.

The primary job of the call center employees was and is to provide customer support services to Apple customers including, among other things, technical and billing support. On a daily basis, these technical services included researching Apple products in order to help their customers and corresponding with the customers and Apple through e-mail. Because the call center employees had to log out of “Softphone” in order to conduct their research and e-mail, they were allegedly not paid for the time they spent performing these tasks. The employees were also allegedly not paid for their time spent researching updates on Apple products on “ApplePedia” (which was a daily task required of them in order to remain informed and up-to-date on Apple products) or time spent on Apple’s online training courses.

The training schedule for the class members is allegedly set by Apple. Upon hire, the class members allegedly are required to pay for and attend Apple’s mandatory training Monday through Friday for more than four hours each day, not including the time spent studying for the next day’s activities. Apple’s mandatory training allegedly lasts more than three weeks and the employees were not paid for any of this time.

The U.S. Department of Labor has devised a test which helps determine whether a person is an employee or an independent contractor.

The Department of Labor has determined the most significant factor to be whether the employer has control or the right to control the work performed and the manner and means in which the work is performed. Apple allegedly controls both of these and so the call center personnel were misclassified.

Jason Hilton, a call center employee with Apple since February 2009, has filed a class action lawsuit against the company on behalf of himself and a nationwide class of individuals who “were paid directly or indirectly by Apple by and through Apple agents to provide customer service and technical support by handling inbound customer calls of Apple customers and who performed this work for Apple away from Apple offices who are or were directly or indirectly classified by Apple as an independent contractor of Apple in the U.S. at any time during the period beginning four years prior to the filing of this complaint and ending on the date as determined by the Court”.

The class is seeking unpaid minimum wages, unpaid overtime, social security, Medicare, unemployment insurance, worker’s compensation insurance, and the employer’s share of tax payments to the federal and state governments plus penalties and interest, as well as an injunction against Apple against engaging in these or any unlawful or unfair business practices in the future.

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When a case comes to trial, emotions can frequently run high on both sides. However, it is important to remain professional in all of your dealings with anyone involved in the case, particularly for a lawyer representing one of the parties. Richard Celler and Stacey Schulman of Morgan & Morgan recently learned this the hard way in their case representing Emigdio Bedoya against Aventura Limousine. Mr. Coupal, representing Avenutra, asked the court to disqualify the plaintiff’s counsel for alleged violations of Florida Bar Rules.

The Florida Bar Rules forbid a lawyer from communicating about the subject of legal representation with any person the lawyer knows to be represented by another lawyer in the matter discussed, unless she has the consent of the other lawyer. This is prohibited communication is known as ex parte communication.

Mr. Celler allegedly broke this rule when he approached Mr. Tinkler, one of the defendants, during a break in testimony, and said, “Scott, you are a big firm and you can afford better representation than Mr. Coupal” and that Celler could never settle if Mr. Coupal remained as defense counsel. Celler does not deny that this conversation took place, although he does claim that it was not truly an ex parte communication, as it was no more than “a ten-second exchange” and occurred in full view of Mr. Coupal.

However, according to the Court’s decision the evidence suggests otherwise. In an email exchange with Coupal after the deposition, Celler remarked: “We are not interested, nor are our clients, in settlement discussions with you as long as you are the lawyer on the other side. You are causing your client a great disservice. If you were not on the other side of the table, we would have a better chance of any resolution and would sit with the principals of the company. I have told Scott Tinkler this. … Time to put your boots on and get to work. No more whining, no more complaining about how you have no support staff, no more complaining about how much work you have to do. Nobody on this side of the internet cares.”

When asked if Celler’s ex parte communication with him had negatively affected his relationship with Mr. Coupal, Tinkler replied “when Mr. Coupal came to me regarding the communication, he was extremely upset and he asked me if Mr. Celler has said anything to me about him, and I said yes, and I basically explained exactly what he said … It has caused a lot of angst between Mr. Coupal and I and I don’t know if it is reparable.”

Celler tried to claim that, since all of this occurred in the context of another case, it has no bearing on the case currently before the court. The judge disagreed however, and found that Celler’s attitude toward Coupal did have bearing on the current case and that there was evidence to show that Celler has not shown good faith in his efforts to settle with Coupal in the present case. The judge therefore decided that remedy for the harmful statements was warranted.

Schulman and Celler also allegedly acted questionably in the matter of Michael Goetz, a former training manager at Aventura who considered himself retired and free to work for Aventura or any other company he chose. He did occasionally work as a greeter for Aventura under the title of independent contractor. Allegedly, Schulman telephoned Goetz and told him to come in to her office for a deposition. When he arrived at her office, instead of holding a deposition, Schulman allegedly discussed the substance of the action against Aventura with him and goaded him into signing an affidavit which was supposedly untrue. Goetz testified that, when he arrived at Morgan & Morgan he met with Schulman, Celler, and a third attorney, that he was not represented by any counsel at the time of this meeting, and that he went back to Celler’s law firm Morgan & Morgan several times to review and sign the affidavit.

After Goetz’s meetings at Morgan & Morgan, Coupal wrote to Celler, saying that he was aware of the meeting they had held with Goetz, that Ms. Schulman was aware that Goetz retained tied to Aventura and that their “interview” may have invaded the attorney-client privilege. He then suggested that they refrain from further ex parte contact with Goetz until the arbitrator or another adjudicative body could determine whether their contact with Goetz was ethically appropriate. Celler responded, “You are wrong on all of this. Goetz is an independent … I will meet with Goetz when I want. He is not an employee, he is a former employee.” Schulman was copied in at least some, if not all of these emails. The judge found that the contacts with Goetz supported Celler’s disqualification, and also established grounds for disqualifying Schulman.

Celler used Goetz’s signed affidavit in his client’s motion for conditional collective action certification. In the affidavit, Goetz describes his previous work at Aventura as Director of Training. Goetz discusses the booking practices, compensation, uniform policy, insurance policy, and communication policy applicable to Aventura drivers. Celler tried to claim that this affidavit has no bearing on the current case but, since used the affidavit in the current case, the judge failed to see how Celler could make this claim.

According to the Florida Bar Rules, a lawyer shall not “disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristics.”

Numerous alleged instances of Mr. Celler engaging in this sort of conduct have been put before the court. Most notably, the e-mail to Mr. Coupal after the ex parte communication with Tinkler. In addition, Tinkler testified that he witnessed Mr. Celler “drawing photos of – pictures of male genitalia and showing them to Ms. Schulman, describing Mr. Coupal” and playing the game Angry Birds during depositions. Celler also wore shorts and a t-shirt to depositions allegedly in order to gain a “psychological advantage” and chose Dunkin’ Donuts as the location for depositions, a venue which Tinkler says was noisy, distracting, and lacking in privacy.

Ordinarily, ex parte communications would not be sufficient cause for disqualification. However, the judge decided that, since there was testimony that Celler’s comments caused irreparable harm to Mr. Coupal’s relationship with his client, “the only proper remedy is Celler’s disqualification.” The judge further found that the various instances in which Celler disparaged Coupal in front of Coupal’s clients and generally acted with such flagrant disrespect shows that the ex parte contact with Tinkler was merely one element of a consistent course of disrespectful, unprofessional conduct on Celler’s part.

The motion to disqualify the law firm Morgan & Morgan has also been granted, given that Mr. Celler is the managing partner of the labor and employment division at Morgan & Morgan and all of the attorneys in the practice report directly to him.

You can read the Court’s opinion here to see its complete reasons for disqualifying the Morgan & Morgan lawyers.

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Verizon is now facing a lawsuit from two former employees of their Elgin, IL call center. Linda Wawrzaszek and Tina Robison allege that Verizon failed to pay its call center employees for all time worked, including regular time and overtime. The two plaintiffs allege that Verizon regularly required its call center employees to work more than 40 hours per week. Allegedly, Verizon knowingly required its employees to perform work before the beginning and after the end of their shift, without payment. This work included time spent booting up and shutting down computers, initializing and closing down software programs, and reviewing work-related e-mails and intranet messages.

Allegedly, Verizon required its employees to arrive prior to their scheduled shifts in order to be ready to provide customer service when their shifts began and to close out of their system after their shift had ended. If call center employees were not ready and willing to provide customer service by the beginning of their shift, their performance scores could be negatively affected. Verizon allegedly did not pay them for the time required to perform these tasks before and after their shifts, nor did they have a process or procedure whereby the employees could recover this time spent working.

The plaintiffs are sure that Verizon is aware of the unpaid time because several employees allegedly complained to management about it. Furthermore, Verizon has already been subject to several lawsuits for similar uncompensated work activities. Currently there is one ongoing case in California and one in Georgia, both regarding unpaid time for call center employees.

The plaintiffs allege that the time spent on these required, unpaid tasks, amounts to between 10 and 20 minutes per day per person. With this time added to their scheduled shift hours, call center employees worked more than 40 hours per week, but they were never paid overtime.

The class is defined as everyone employed by Verizon in Illinois as hourly call center employees providing customer service or support at any time during the applicable three year statute of limitations. While the exact number of potential class participants has yet to be determined, the plaintiffs believe that there are several hundred individuals who satisfy the class requirements.

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One work situation that Illinois wage and hour attorneys frequently encounter is one where the worker is covered by the Fair Labor Standard Act (FLSA) and the Illinois Minimum Wage Law (IMWL), but the employer pays the worker through a flat rate. While it is not unusual for certain industries to have alternate systems to the standard hourly rate — such as a “piece rate” standard, where workers are paid by each unit they produce and is legal — you should watch out for employers who use flat-rate schemes when they should be paying an hourly rate.

In Nunes v. Chicago Import, Inc., Plaintiff Jose Guadalupe Nunes and others sued defendant, a wholesale trading company, for unpaid wages, in violation of the FLSA and the IMWL. The plaintiffs worked as laborers for the defendant’s import warehouses, which were typically open for business from Monday through Saturday between 9 a.m. and 8 p.m. Between 2007 and 2010, defendant paid the plaintiffs for their work through an arrangement that did not require them to pay a minimum wage. Instead, the plaintiffs were paid a flat weekly rate that never varied, even if the hours worked each week did. In 2010, defendant began paying hourly wages and requiring laborers to punch in and out on a time clock. Plaintiffs sought wages for hours worked during the time they were paid a flat rate.

While both parties agreed that the plaintiffs were paid a flat rate, they disagreed over whether the plaintiffs worked even 40 hours a week, let alone over 40 hours. The plaintiffs claimed that the hours on the time records were consistent with the hours they worked during the flat-rate period. The defendant claimed that while the plaintiffs worked during business hours, they came in late and left early. The defendant believed that the punch card records contradicted the plaintiffs’ claims about the hours they worked, and pointed to testimony from the plaintiffs that they took 15 minute breakfast breaks two or three days a week. The defendant also pointed to records that showed a discrepancy between the plaintiffs’ claims about what they were paid ($350 one week) and what they were actually paid ($500).

The plaintiffs moved for a ruling in their favor, arguing that the defendants had admitted their liability and had not presented enough evidence to undermine the reasonableness of the plaintiffs’ claims. Judge Charles Kokoras of the Northern District of Illinois ruled in the plaintiffs’ favor on most of the charges, since the defendant admitted that they did not pay the statutory minimum wage or overtime wages. However, the judge resisted issuing an entire summary judgment ruling in favor of the plaintiffs because on the issue of the amount owed, the defendant had provided enough just enough evidence to call the amount into doubt. Therefore, the judge allowed the case to continue to determine just how much the plaintiffs were owed.

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