California Employment Lawyers Blog

As Santa Ana, California Class Action Employment Attorneys, we have been following the recent news, ruled in federal appeals court this week, that thousands of women who work for Wal-Mart can move forward and sue the giant retailer in a class action lawsuit, over allegations of gender discrimination.

The decision was made by the U.S. Court of Appeals for the 9th Circuit based in San Francisco, and is reportedly a big step necessary to move the gender bias case to a court trial after nearly ten years. According to the New York Times, the federal appeals court gave a sharply divided 6-5 ruling, allowing the sex discrimination lawsuit to move forward as a class action suit. This suit could be the biggest employment discrimination case in U.S. history, with female employees seeking billions of dollars from Wal-mart.

The lawsuit reportedly began in 2001 with six female employees led by Betty Dukes, a California Wal-Mart greeter, who claimed that the retail giant systematically engaged in gender discrimination--paying the female greeters less than their male colleagues, even though they consistently had higher performance ratings and more seniority. The six employees also claimed that they received fewer promotions, fewer job opportunities, and smaller raises than the male employees, and had to wait longer for them. In one documented case, a female worker was told she was not qualified to be a manager because she could not stack dog food bags that weighed fifty pounds.

The Washington Post reports that the original class included female employees who had worked for Wal-Mart since 1998, initially estimated to include around 1.6 million women, which would have made it the largest sex discrimination case in this nation's history. The appeals court decided to leave out the group of female workers that left Wal-Mart prior to the 2001 filing of the suit, which could still mean that the class action lawsuit might include more than 1 million female employees. Wal-mart claims that the number is closer to 500,000.

Continue reading "Federal Court Upholds Female Employees' Right to Sue Wal-Mart in Class Action Gender Bias Suit" »

Our California Employment Attorneys reported in a blog earlier this month about the devastating tragedy in West Virginia, where 29 miners died after a massive mine explosion. In the shadow of these deaths and the many other preventable deaths, injuries and illnesses in the workplace that happened across the country over this past year--yesterday was proclaimed by President Obama to be Workers' Memorial Day, 2010.

Workers Memorial Day 2010, marks the 40th anniversary of Occupational Safety and Health Act of 1970, and the 39th anniversary of the creation of the National Institute for Occupational Safety and Health in the U.S. Department of Health and Human Services.

This day of observance, according to the National Institute for Occupational Safety and Health (NIOSH), is important to encourage employers, lawmakers, and the public to continually achieve better health and safety in the workplace, to prevent unnecessary disasters, and to save the valuable lives of workers around the country. The theme for this year is: "Good Jobs. Safe Jobs NOW."

According to U.S. Department of Labor, 5214 workers in this country died from occupational injuries in 2008, and every year around 49,000 deaths are attributed to work-related illnesses.

Continue reading "Safety and Health in the Workplace--Workers Memorial Day 2010" »

In a recent blog our employment attorneys at HOWARD | NASSIRI, PC discussed a recent $1 million employment lawsuit against action movie star Steven Seagal, for allegedly harassing and assaulting a former employee in a sexual way, as well as retaliation.

This week, two more former employees came forward claiming that they were also sexually harassed by Seagal, one of whom is Blair Robinson, the granddaughter of Ray Charles.

Robinson reportedly met Seagal in 2004 at her grandfather's funeral service. Seagal soon after hired Robinson to be his assistant, where she allegedly was told on the first day that is was required in her job description to give him massages. Robinson claimed that it quickly became clear that Seagal expected sexual favors as a part of her job responsibilities, an employment proposition Robinson was unwilling to accept.

According to TMZ, another woman also came forward claiming that Seagal made similar unwanted sexual advances toward her while she was employed by the film actor. She claimed that he touched her inappropriately by placing his hands on her breasts and down her pants. The former employee reportedly screamed and cried until Seagal released her.

Continue reading "Sexual Harassment Lawsuit Saga Continues for Action Star Seagal" »

As California Employment and Labor Lawyers, we are experienced in understanding the legal complexity surrounding the differences between an "employee" and an "independent contractor," in the workplace, as we recently discussed in a blog. Employee misclassification can lead to substantial employer liability resulting in violations of federal and state laws.

According to the California Department of Industrial Relations' Division of Labor Standards Enforcement (DLSE), in recent years many employers have reclassified their workers from "employees" to "independent contractors," to cut the cost of workers' compensation insurance, to not have to payroll taxes, minimum wage or overtime, pay for unemployment or disability insurance, social security, or comply with other wage and hour laws like providing rest breaks or meal periods that came with workers who were previously classified as "employees."

In the groundbreaking California case "JKH Enterprises v. Department of Industrial Relations" from 2006, that highlighted the dangers of improper classification, the courier business company JKH had reclassified the company drivers as independent contractors, after the Labor Commissioner issued a stop order pursuant to Labor Code section 3710 following an inspection of the company's employment practices. In the second round of inspections, JKH was issued another stop order and fined a penalty of $1,000 per driver.

Although JKH appealed the stop order and penalty assessment, it was determined by the hearing officer that JKH Enterprises had failed to show proof that the workers were independent contractors. It was established by the hearing officer that the drivers of the company were integral to the package delivery service, and thus indicated an employment relationship.

Continue reading "California DLSE and Employee Misclassification" »

In a recent blog, our Orange County Labor and Employment Lawyers discussed the topic of "non-exempt" employees versus "exempt" employees in regard to employee misclassification in the workplace.

According to the Fair Labor and Standards Act (FLSA), employees can be exempt from overtime pay provisions, exempt from both overtime and minimum wage pay provisions, and exempt from the FSLA's child labor provisions.

Examples of employees who can frequently be misclassified include managers, office employees, non-manual employees, or supervisors who do not manage two or more employees and who do not spend half of their time performing managerial responsibilities, among other types of employees.

The FLSA states that commonly used exemptions in the workplace include:

• Professional, executive, administrative and outside sales employees who are paid a salary are exempt from the FLSA's minimum wage and pay provisions.
• The FSLA provides that some computer professionals who are compensated with an hourly rate of $27.63 per hour are exempt from overtime provisions
• Drivers, loaders, driver's helpers, and mechanics have an exempt status from overtime pay provisions if they are employed by a motor carrier, and as the FLSA reports, if the worker's responsibilities affect safety in operating vehicles while transporting passengers, or property in foreign or interstate commerce.
• Mechanics, salesmen and partsmen who are employed by auto dealerships are exempt from FLSA overtime provisions
• Farmworkers who work on farms that are small are both exempt from the FLSA overtime and minimum wage compensation provisions. Young workers on small farms with consent from parents are also exempt from the FLSA child labor provisions.
• Seasonal and recreational establishment workers have an exempt status from both the overtime pay and minimum wage provisions of the FLSA.
• Commissioned sales employees of service or retail establishments are exempt from overtime if more than half of the employee's earnings come from commissions and the employee averages at lease one and one-half times the minimum wage for each hour worked.

Continue reading "FLSA Commonly Used Exemptions for Employees" »

In recent employment news that our Santa Ana Labor and Employment Attorneys have been following, a class-action wage and hour lawsuit has been filed against McMillan's Home Care Agency in New York, with employees claiming that they were regularly underpaid, and never received lawful overtime compensation for frequently working up to 60-hour work weeks.

According to the lawsuit, the agency neglected to pay employees overtime for working "off the clock," and demanded that workers cover the cost of buying and cleaning their home care uniforms as well as other supplies necessary for the job. McMillan is also being accused of continually misreporting and illegally falsifying employee pay records, and the lawsuit seeks unpaid wages and an agreement from the company that they will comply with the wage and hour laws of New York State in the future.

The class-action lawsuit was filed in the New York County Supreme Court by Josefina A. Toledo, a resident of Harlem, on behalf of herself and hundreds of McMillan's workers who have experienced violations dating back to 2004. As a home care worker, Montero and her colleagues provide home health care for elderly, ill, and housebound residents in the New York-area. They claim that they were paid for all work hours at a regular straight-rate time, with no overtime pay reflecting the "off the clock" hours. Toledo and her coworkers were also allegedly required to attend long training sessions at the McMillan offices a few times a year without pay.

The lawsuit states that the home care industry is one of the nation's fastest growing occupations, with home care workers making up one out of every seven New York City low wage workers. The Department of Labor reports that New York home health care aide work is a rapidly growing industry occupation, with an expected job rise of 41 percent to 115,200 by 2016. The majority of these workers reportedly remain overworked and underpaid, with many of them earning only minimum wage or slightly above for hard work that requires long hours and serious dedication.

Continue reading ""Off the Clock" Class-Action Lawsuit for NY Home Care Service Agency" »

In recent Los Angeles, California employment news, action movie star Steven Seagal is being sued by a former executive assistant for sexual harassment, and for allegedly using her as a "sex toy."

According to the reports, 23-year old model Kayden Nguyen filed a complaint with the California Department of Fair Employment and Housing, alleging that while employed by Seagal she was sexually harassed, repeatedly fondled by him against her will, and given prescription drugs. She requested that the agency give her the right to sue for these employment violations, and her request was approved. She filed the civil lawsuit in Los Angeles County Superior Court.

Nguyen reportedly applied for the executive assistant position and was quickly hired in February 2010 and flown to Louisiana on Seagal's private jet where he is currently filming "Steven Seagal Lawman," a television show for A&E Network, which follows Seagal as he makes law enforcement runs. Nguyen claims that when she arrived at the home, she was shocked to find that her room did not have a door, only a curtain.

In the lawsuit Nguyen claims that instead of assisting Seagal with his business duties, she was treated like a "sex toy," and expected to work with two Russian women to allegedly assist action star's sexual needs on a 24 hr basis. She claims that she was told she would be replacing one of the women. Nguyen alleges that she was then sexually assaulted three times by Seagal over a period of six days, one of which was described as a "vicious sexual attack."

Continue reading "Steven Seagal Sued for Sexual Harassment--Lawsuit Suspends Reality Show Filming" »

Employee misclassification in the Southern California workplace is a frequent and growing problem in regard to violations of minimum wage and overtime payments, meal periods and rest breaks, tax responsibilities, and employee benefits, along with other federal and state employment laws and regulations, and can lead to wage and hour class action lawsuits, and hefty fines and penalties for employers if a classification is incorrectly assigned.

In the state of California, employees are generally classified as either non-exempt employees or exempt employees. Most non-exempt employees are entitled to overtime pay under the Fair Labor and Standards Act (FSLA), which is one and a half (1 ½) times their regular hourly pay rate when they work more than 40-hours in a work week. Time and a half is also required when employees work more than eight hours on the seventh consecutive work day in a week. For all hours worked over twelve in a day, employers must pay double time the regular rate, as well as double time beyond the eight hours on the seventh consecutive workday in a week. Employers often miscalculate how much overtime workers are actually owed, when working past a 40 hour work week.

Misclassification of employees can happen when an employer classifies an employee erroneously as "exempt," meaning that the employee is not entitled to overtime pay or other wage and hour benefits that are usually available to non-exempt employees. Often employee misclassification happens when an employee is directed to work in such a way that causes the employee who has been properly classified as exempt to lose his exempt status, like when employers deduct missed work time from the employee's salary, which could entitle the employee for overtime pay.

If an employee has been improperly classified as non-exempt, that worker may be entitled to overtime compensation--payment that the employee should have received during the statue of limitations period as well as penalties, interest, and the cost of legal fees.

Continue reading ""Exempt" vs. "Non Exempt" in the California Workplace" »

In a previous blog, our Anaheim-based Labor and Employment Lawyers discussed a recent California wage and hour lawsuit filed by former Hooters waitresses who claimed to have been subjected to violations of California labor laws.

According to a recent article in the New York Times, this case is revealing to many as the three class action lawsuits have nothing to do with skimpy uniforms female waitresses are required to wear, or the nature of the provocative theme promoting the restaurant--that sex sells and it is legal.

This class action wage and hour lawsuit is accusing Hooters of California wage and hour law violations, by forcing waitresses to buy their own uniforms, work through breaks, share hard earned tips with managers, and work for free at bikini car washes, gold tournaments, car shows, even going to local businesses to give them free wings.

The article claims that from 2000 to 2005, employment-related class-action lawsuits have increased more than 300 percent in the State of California, the highest number of lawsuits in the country, next to Florida, who wins for per-capita filings. California is reportedly home to the most expansive and rigid laws protecting employee rights in the workplace.

Continue reading "Hooters Reveals Increase in California Class-Action Lawsuits" »

In a recent blog, our Labor and Employment Lawyers based in Orange County, California discussed how state and federal regulators are investigating the epidemic of unpaid internships across the country, in order to stop employers from exploiting interns by violating wage and hour laws, rather than providing work exchange programs that benefit both students and employers.

According to the U.S. Labor Department's wage and hour division, for-profit employers must qualify for an unpaid internship by complying with the federal government's strict six federal legal criteria. The Department of Labor's Wage and Hour Division (WHD) clarifies the differentiation between a "trainee" and an employee in regard to the Fair Labor Standard Act (FSLA) by these six federal criteria:

• The training given in the internship must be similar to what would be given in an educational setting, or vocational school

• The training should be for the benefit of the trainee

• The trainee's work not replace workers who are regularly paid

• The employer receives no immediate advantage from the trainees' activities, and the employer's operations may actually be impeded on occasion

• At the end of the training, the trainees are not necessarily entitled to a job

• Both the trainee and the employer understand that the trainee is not entitled to wages during the training period.

Continue reading "Federal Criteria Defining Legality of Unpaid Internships" »

In Los Angeles, California employment news, a wage and hour lawsuit has been filed against five Hooters restaurants in the Los Angeles area, Sacramento area, Fresno, and Bakersfield, by female waitresses who claim that they have been subjected to repeated violations of California labor laws.

According to the complaint, brought by one existing employee and several former employees, Hooters workers are subjected to a series of California wage and hour violations, such as being unlawfully forced to work through meal and rest breaks, having walkouts deducted from pay checks, having their time cards altered, and being forced to share tips with managers. Hooters is also being accused of failing to pay employees the minimum wages that are required by California state law, as well as applicable overtime and expenses. The lawsuit is seeking class-action status, and will represent nearly 1,000 present and former employees within the past five years.

Hooters waitresses are also accusing the restaurant chain of forcing them to pay for and maintain their own uniforms for employment in the restaurant--a very specific uniform which requires mandatory orange short shorts, a tank top with the Hooters logo, nude pantyhose, and shoes. The uniform is reportedly not inexpensive, as pantyhose cost around $4-5 dollars per pair, and the shoes are upwards of $55. The waitresses are never allowed to wear the uniform anywhere other than the restaurant. California law requires that any specialized uniform must be paid for by the employer, and according to the suit, Hooters is failing to reimburse employees for all expenses that are reasonably incurred in the course of performing their jobs.

Hooters is also being accused of forcing the waitresses to make promotional appearances in public places, like golf tournaments without compensating them for their time, as well as neglecting to pay them for time spent doing paperwork at the restaurant that is expected to be done after clocking out. The female employees also claim to be subject to constant scrutiny for their looks and are expected to correct any flaw on their own time and dime.

Continue reading "Female Employees Sue Hooters in Class Action California Wage and Hour Lawsuit" »

In a blog from earlier this week, our Southern California Labor and Employment Lawyers discussed Monday's mine explosion in West Virginia that killed at least twenty-five employees, and whether looking into last month's federal safety violations could have prevented the workers' deaths in the explosion.

According to safety inspectors, the conditions at Massey Energy Company were concluded last month to contain substantial and significant risks to the health and safety of miners before the explosion on Monday happened.

In the month of March, the U.S. Mine Safety and Health Administration reportedly cited the mine for over 50 safety violations, 37 of which Massey appealed. Administration officials reportedly cited the Upper Big Branch South Mine, operated by Massey Energy Subsidiary, Performance Coal Co., for improper ventilation of the mine dust, failing to control coal dust accumulation, improper ventilation of the highly combustible methane gas, failing to maintain proper escape ways, neglecting to protect workers from roof falls, and allowing combustible materials to build up.

Scott Simonton, Marshall University's Professor of Environmental Science and Environmental Engineering stated that these violations have the potential of being very "relevant" to the explosion on Monday.

Continue reading "Could Looking at Safety Violations Have Prevented the Massey Mine Explosion?" »

Our California Employment and Labor Lawyers have been following the hot topic in employment news this week about the Labor Department's crack down on unpaid internships, investigating employers who take advantage of interns for whom paid jobs are difficult to find--violating wage and hour laws in states across the country including California, Oregon, and New York.

Last year, M. Patricia Smith, during her term as New York's labor commissioner investigated several firms and their internship programs, to determine whether the internships violated wage and hour laws. Smith is now acting as a top law enforcement official for the federal Labor Department's wage and hour division, and is taking this wage and hour investigation nationwide.

Nancy J. Leppink, the acting director of the Labor Department's wage and hour division claimed that there are not many options for a for-profit employer to offer an unpaid internship and still comply with wage and hour laws. Although internships in the world of arts and non-profits are common, unpaid internships in the for-profit world can lead to exploitation and wage and hour law violations.

Leppink claimed that in order for an internship to be unpaid, employers must comply with the six federal legal criteria. Leppink stated that many employers still fail to pay interns, even when their internships fail to comply with these six federally mandated legal criteria to achieve an unpaid internship status.

Continue reading "Labor Department Investigates Whether Unpaid Internships Violate Wage and Hour Laws" »

Our Santa Ana, California Labor and Employment Lawyers have been following the tragic news of the massive explosion on Monday afternoon at the Upper Big Branch South Mine, in Whitesville, West Virginia leading to the workplace death of twenty-five miners--which according to federal officials and other miners, might have been preventable.

The Massey Energy Company, owner of the Upper Big Branch Mine, has reportedly received sharp criticism and fines from regulators over its environmental and safety records. Although the cause of the explosion has not been determined, some say that a buildup of methane gas is often a cause for mine blasts. As Massey Energy's health and safety records are being questioned, so are the laws governing workers in the mining industry--to find out why this disaster was not preventable.

The New York Times reported that Kevin Stricklin, an administrator for the U.S. Mine Safety and Health Administration (MSHA), claimed that from the magnitude of this explosion, it is clear that something very wrong happened here. This explosion was the worst mining accident seen in 25 years, and that all explosions are preventable.

Four people are still missing in the mine, and rescue teams have been unable to search for the miners because the high quantities of noxious gases, that could cause another explosion. Monday's mine blast is being investigated by the MSHA.

Continue reading "Deaths of Workers in Massey Energy Mines Raise Safety Concerns" »

As Carson, California Employment Lawyers, we have been following the recent announcement that newly merged Merrill Lynch and Bank of America are being sued by three female Financial Advisors, accusing the companies of gender discrimination and retaliation.

The three plaintiffs, Judy Calibuso, Julie Moss, and Dianne Goedtel, had reportedly been financial advisers for the companies for fifteen, nine, and seven years respectively. In the lawsuit, filed as a national class action suit, they accused Merrill Lynch and Bank of America of subjecting female financial advisers to a pattern and practice of discrimination based on their gender, in compensation, professional support, business opportunities and other employment terms and conditions-- violating state and federal laws including Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the Florida Civil Rights Act of 1992.

The complaint alleges Merrill Lynch and Bank of America treat their female Financial Advisors like "second class citizens," and have given male colleagues of equal capabilities better professional opportunities. The companies are also being accused of failing to ensure equal opportunities for female financial advisers in partnership opportunities, account distributions, pay-out rates, income increasing opportunities, and other benefits in its plan of compensation.

Calibuso, Moss, and Goedtel also claimed that the companies acted in retaliation against them when they complained about experiencing inequality in the workplace. One of the financial advisers claimed that after she reported the inequality, she was reprimanded verbally, and immediately required to seek pre-approval when filing expense reports for business lunches--something that her male colleagues were not asked to do.

Continue reading "Merrill Lynch and Bank of America Sued for Gender Discrimination and Retaliation" »

In a recent blog, our labor and employment attorneys at HOWARD | NASSIRI, PC discussed the high rates of wage and hour law violations, happening to low-wage workers in Los Angeles, California, New York and Chicago. In a study of these three cities by UCLA, statistics showed that workers were systematically being forced to work through breaks, were not receiving overtime pay or documentation of pay, and were being subjected to tip stealing, among other violations.

Yesterday, Hilda Solis, U.S. Secretary of Labor, stated that federal laws apply to all workers, and many employers are not respecting these rights. The U.S. Department of Labor is now fighting back, starting an aggressive campaign to go after companies who regularly cheat employees out of their hard earned wages and engage in wage-theft and wage and hour violations.

The campaign is being called, "We Can Help," and is being designed to educate employees and workers about their lawful rights under the Fair Labor Standards Act (FLSA). The FLSA establishes minimum wage, pay documentation, overtime pay, and youth employment standards that affect part-time and full-time private sector or governmental workers--protecting workers from violations of these rights in the workplace.

The campaign will be conducted in several languages, and will educate employees about their rights in the workplace and show them how to file a wage complaint with the Wage and Hour Division. Solis said her office is ready to fight for workers' rights regardless of immigration status or citizenship, by being prepared to investigate claims by workers who have experienced wage and hour violations.

Continue reading "U.S. Labor Department Launches "We Can Help" Campaign to Enforce Wage and Hour Laws" »